Page 611
125 S.W. 611
GARTH 
v. 
STUART et al.†
Court of Civil Appeals of Texas.
January 29, 1910.
On Motion for Additional Findings, February 26, 1910.
        Appeal from District Court, Freestone County; H. B. Daviss, Judge.
        Action by D. T. Garth against J. W. Stuart, in which W. T. Chumney intervened. From a judgment for 
intervener, plaintiff appeals. Affirmed.
        Alexander & Hogsett and D. T. Garth, for appellant. W. R. Boyd and W. J. Bryant, for appellee.
        RAINEY, C. J.
        This is an action of trespass to try title brought by D. T. Garth against J. W. Stuart to recover a 
certain lot of land situated in the town of Teague, Freestone county, Tex. Stuart answered and disclaimed 
any interest in the title to the land, except as leaseholder under and through George D. Hunter. W. T. 
Chumney intervened, claiming a fee-simple title, and that Garth was asserting claim under a sheriff's deed 
which cast a cloud on intervener's title, and asked that Garth's deed be canceled and his title be 
established. The cause was tried without a jury, and judgment rendered by the court for intervener 
against plaintiff, and recognizing intervener's right to possession under his lease. Garth appeals.
        The trial court filed conclusions of fact, which are adopted by this court. Said conclusions are as 
follows: "It is admitted, and the court so finds, that defendant J. W. Stuart is only the tenant holding 
under a written lease for one year, with privilege of renewal, and is entitled to possession of the premises 
during the performance of his lease contract, regardless of the ownership of said premises. It is admitted, 
and the court so finds, that Geo. D. Hunter is common source of title to the premises in controversy; that 
L. W. Levy & Co., composed of L. W. Levy and Ben Sass, recovered a judgment against Geo. D. Hunter in 
the county court of Freestone county, on the 22d day of October, 1908, for the sum of $702.86, with 
interest thereon at the rate of ten per cent. per annum, which was unsatisfied at the time of sale of the 
property in controversy under execution; that L. W. Levy & Co. caused an abstract of such judgment to be 
recorded in the judgment record in Freestone county on November 5, 1908, and that said judgment or 
abstract of same is properly recorded and properly indexed in volume 2, p. 49, of the judgment record of 
said county, but not in volume 3; that there are three volumes of the judgment records for Freestone 
county kept in the office of the county clerk, that each of said records has a separate index kept in the 
front of each volume and used only for such volume, and that there is no separate index kept for all of 
said records; that the judgment recorded by Levy & Co. is only indexed in volume 2, and that volumes 2 
and 3 were at the time being used by the clerk alternately for the purpose of recording abstracts of 
judgments, volume No. 1 being entirely filled; volume 2 was printed in the certificate form, and No. 3 in 
the tabulated form, and otherwise there was nothing about No. 3 to show that No. 2 was being used at 
the time, and there is nothing about either form to indicate that another book might be in use except to 
those who might be familiar with the fact that there are two forms in use; that on December 17, 1908, L. 
W. Levy & Co. caused an execution to be issued out of the county court upon said judgment, and same 
was levied upon lot No. 10 in block No. 107 in the city of Teague, and after proper notice that same was 
sold on February 2, 1909, plaintiff D. T. Garth being the purchaser, and that plaintiff holds sheriff's deed 
properly executed, acknowledged, and recorded, dated February 2, 1909, conveying all the interest of 
Geo. D. Hunter in said lot; said proceedings were in regular form; that Geo. D. Hunter and wife, by deed 
duly executed, dated August 19, 1908, conveyed said lot No. 10 in block No. 107 to W. C. Persons for a 
valuable consideration; that W. C. Persons, by his deed duly executed, and for a valuable consideration, 
on the 28th day of October, 1908, conveyed said lot No. 10, block No. 107, to W. T. Chumney, and that 
Chumney filed both said deeds for record in office of the county clerk of Freestone county on the 9th day 
of November, 1908; that defendant J. W. Stuart entered into a written lease contract
Page 612
with Geo. D. Hunter on the 16th day of June, 1908, for said premises for a period of one year from said 
date, Stuart paying $75 cash in advance for the first month, and executed and delivered to Geo. D. Hunter 
11 negotiable promissory notes for $75 each, payable on the 17th day of each succeeding month until 
same was paid, with the privilege of renewal of said lease, and that on or about October 20th Stuart paid 
to said Persons one of said rent notes, due October 17th, Persons stating to Stuart at the time that he 
then owned the property and held a deed to same from Hunter; that Stuart paid the rent notes due for the 
months of November and December, 1908, and January, 1909, to W. T. Chumney, and both Chumney and 
Persons stated to him that Chumney owned the premises; that W. T. Chumney holds the rent contract and 
all unpaid rent notes given by Stuart, same having been assigned by Hunter to Persons and by Persons to 
Chumney, and agrees to be bound by the rent contract for the premises, having agreed at the date of his 
purchase to respect same; there was no new rent contract between Stuart and Persons or Chumney, and 
no formal attorning as tenant other than implied in notice of conveyance by Hunter and payment of rent 
notes as they fell due, and no objection from Stuart on being informed of sale by Hunter to Persons and 
by Persons to Chumney."
        The appellant presents the following assignment of error and proposition, viz.: "The court erred in 
his first conclusion of law, as stated in his filed findings and conclusions, wherein he concluded that notice 
to Stuart that Hunter has sold and deeded the premises to Persons, with no objection or protest from 
Stuart, together with payment of the rent note, was sufficient to put the judgment creditor of Hunter on 
notice that Hunter had parted with all interest in the property, because plaintiff says the burden was upon 
intervener to show that Levy & Co. had either actual or constructive knowledge of the unrecorded deed, 
and no such proof was made, nor does the evidence tend to show that Stuart would have advised the 
judgment creditor (on inquiry) any further than that his occupancy was under a lease contract made with 
Hunter." Proposition: "The lien of the judgment in favor of Levy & Co. against Hunter, attached to the lot 
in question, regardless of the unrecorded deed from Hunter, and Garth, as a purchaser of the lot at 
execution sale under said judgment, acquired title to the lot unaffected with notice, actual or constructive, 
of the unrecorded deed from Hunter."
        We are of the opinion that the trial court did not err in holding that Levy & Co. were chargeable with 
notice of appellee's title to the land. When Levy & Co. filed their abstract of judgment against Hunter, the 
title had several months prior thereto passed out of Hunter and vested in Chumney, intervener, though his 
deed had not then been recorded, but Stuart was in open and visible possession of the lot as tenant 
attorning to the purchaser of the Hunter title. Stuart was holding the premises under a written lease from 
Hunter on August 19, 1908, when Hunter conveyed to Persons, and the lease and notes for the monthly 
rent not paid were transferred to Persons, and when Persons conveyed to Chumney he transferred the 
lease and notes to him. Stuart paid one month's rent to Persons on October 20, 1908, and subsequently 
paid to Chumney the notes due for November, December, and January. There is no proof that Levy & Co. 
knew that Stuart was holding under Hunter when Hunter owned the title, and that he had no notice of 
Hunter's conveyance, and he was resting on the belief that Stuart was Hunter's tenant. But if Levy & Co. 
did know that Stuart was Hunter's tenant at one time, when he went to subject the land to his claim, he 
could not rely on such knowledge, but it was his duty to inquire of the tenant in possession as to his 
holding. This they did not do.
        Mainwarring v. Templeman, 51 Tex. 205, it is said: "Under our statute the rule has become settled 
that possession, either in person or by tenant, is equivalent to registration. * * * If the possession be 
sufficiently open and definite, whether it be in person or by tenant, it is incumbent on one who undertakes 
to acquire rights in the land to inform himself of the rights of the occupant, or of the landlord of the 
occupant. The purchaser should not be excused from inquiry unless there be something more to mislead 
him than his own assumption that parties occupy under the same right as formerly."
        In Grocer Co. v. Burks, 101 Tex., on page 112, 105 S. W., on page 175, Mr. Justice Williams says: 
"Nor do we lay down any doctrine inconsistent with the decision Mainwarring v. Templeman, 51 Tex. 205, 
which holds that where the owner of land on which he has a tenant, conveys to another to whom the 
tenant attorns, no other change of possession is necessary to give notice of the title of the purchaser."
        Collum v. Sanger, 98 Tex. 165, 82 S. W. 460, Mr. Gaines, C. J., says: "In the recent case of Ramirez 
v. Smith, 94 Tex. 184, 59 S. W. 258, it was expressly stated as a general rule that the fact that the 
possession of one holding land is consistent with the recorded title does not exempt a purchaser from the 
duty of inquiring of him as to any other title. We think it a safe and salutary rule to require of a 
prospective purchaser of land to ascertain whether any other be in occupancy of it; and, if there be such 
possession, to go to the possessor and ascertain the nature and extent of his claim. Possession is evidence 
of title, and, it seems to us, that common prudence and common honesty demand this course. If so, the 
possession should be notice to him; and, if notice to a purchaser, it is notice to a creditor."
Page 613
        Garth holding the junior title, the burden was on him to show want of notice of the transfer of 
Hunter's title; not having shown this the court correctly rendered judgment for Chumney.
        The judgment is affirmed.
On Motion for Additional Findings.
        We are asked by appellant to make additional findings of fact, which we do as follows: The judgment 
of Levy & Co. v. Hunter was duly abstracted, recorded and indexed in the county records of Freestone 
County, Texas. We are asked to find that the deed from Hunter and wife to Persons was not delivered until 
November 4, 1908. This deed was dated August 19, 1908, and acknowledged same day by Hunter and on 
November 4, 1908, acknowledged by his wife. Stuart paid to Persons the October rent about the 21st of 
October, 1908. Hunter may have delivered the deed when he executed and acknowledged it and 
surrendered the right to and control over the premises, so we are not prepared to find that the deed was 
not delivered until November 4, 1908. If Hunter and wife were occupying the premises as indicated by the 
following clause in the lease contract, "that the party of the first part shall retain enough room in said 
building as a homestead during the life of said lease," when they sold to Persons, then no lien was fixed 
by the abstracting of said judgment, as the premises were not subject to the claims of creditors.
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Notes:
† Writ of error denied by Supreme Court.
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