
    BREEN v. MOREHEAD et al.
    (Supreme Court of Texas.
    April 26, 1911.)
    1. Public Lands (§ 178) — Sale—Forfeiture —Patent on Subsequent Sale.
    Where the state makes a contract for sale of public lands to R., and he conveyed an interest in the land to B., and afterwards the state forfeits such sale, and sells the land to another, and thereon issues a patent to such other person, B., not being in privity with the state, may not attack the forfeiture, and through it the patent.
    [Ed. Note. — For other cases, see Public Lands, Dec. Dig. § 178.]
    2. Vendor and Purchaser (§ 231) — Bona Fide Purchaser. — Notice—Records.
    One buying land from the patentee thereof from the state is not bound to look beyond the title of his grantor from the state — that is, is not bound to search the records prior to the time the patentee made his application to the state to buy — and so is not charged with notice of the record of a deed given by the patentee prior to ¡the time he made such application.
    [Ed. Note. — For other eases, see Vendor and purchaser, Dec. Dig. § 231.]
    Error from Court of Civil Appeals of Fourth Supreme Judicial District.
    Suit by C. R. Morehead against C. O. Coffin and others, in which Patrick Breen intervened. Judgment adverse to intervener was •affirmed by the Court of Civil Appeals (126 S. W. 650), and intervener brings error.
    Affirmed.
    Edwards & Edwards, Sam B. Gillette, and F. G. Morris, for plaintiff in error. Patterson, Buckler & Woodson, Beall, Kemp & Ward, R. V. Bowden, and M. J. McKelligon, •for defendants in error.
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   BROWN, C. J.

The subject of this controversy is section 270, containing 640 acres 'located in El Paso county, and surveyed for •the school fund by virtue of certificate issued to the Houston Tap & Brazoria Railroad Company. Marshall Rogers applied to purchase that section under the law of 1883, ¡and, having complied with its terms, the land was awarded to him on November 23, 1883, at,the price of $1,546.66%. Rogers complied with the law, and executed his •obligation in accordance with the law.

On July 2, 1885, Rogers conveyed an un■divided half interest in section 270 to John Julian, and on the same day he conveyed the other half to M. J. McKelligon; both •deeds being in the form of a quitclaim, and both were recorded in El Paso county on the •day of their date. On the 21st day of October, 1885, for a valuable consideration, Mc-Kelligon executed and delivered the following instrument to Patrick Breen: “The State of Texas, El Paso County. Know all men 'by these presents that I, Maurice J. McKelli-gon of the county of El Paso and state of Texas, for and in consideration of the sum of two thousand dollars to me in hand paid by Patrick Breen of the county of El Paso and state of Texas, the receipt of which is hereby acknowledged, do by these presents grant, bargain, sell, release and forever quitclaim unto the said Patrick Breen, his heirs and assigns, all my right, title, and interest in and to that tract or parcel of land lying in the county of El Paso and state of Texas, described as follows, to wit: Being in the county of El Paso and being one-half undivided interest in three hundred and twenty acres sold by Marshall Rogers on the 2d day of July, 1885, to Maurice J. McKelligon which said deed is duly recorded on the records of said El Paso county, and here referred to as description and being further described as one hundred and forty acres sold by the state of Texas through the surveyor of El Paso county, on the 23rd day of November, A. D. 1883, as evidenced by certificate number 586 of section 270 of the lands of H. T. & B. R. Rd. Co., the same being the section of 640 acres sold on said date to Marshall Rogers for the benefit of the common schools of Texas, said interest herein conveyed as above described being one hundred and sixty acres as aforesaid. To have and to hold the said premises together with all and singular the rights, privileges and appurtenances to the same in any manner belonging, unto the, said Patrick Breen, his heirs and assigns, so that neither I, the said Maurice J. McKelligon, nor my heirs, nor any person or persons claiming under me shall at any time hereafter claim or demand any right or title to the aforesaid premises or appurtenances or any part thereof. Witness my hand this 21st day of October, A. D. 1885. M. J. McKelligon.”

The interest and installment of principal due August 1, 1885, and also that due on the 1st day of August, 1886, were not paid, and the sale of the land was duly forfeited according to law then in force. On the 6th day of July, 1887, M. J. McKelligon filed his application to purchase, the said section 270 under section 8 of the act of 1887 (Laws 1887, c. 99), complying in all respects with that law, and the land was awarded to him. On the 25th day of August, 1890, patent was issued to McKelligon for the land. On July 24, 1S90, McKelligon and wife released by quitclaim deed to Davis, Bell & Davis five-eighths of the section, which instrument was duly recorded in El Paso county. Prior to January 3, 1893, the interest of Davis, Bell & Davis was Conveyed to P. E. Kern. By warranty deed of date January 6, 1893, in consideration of $10 paid, and for money before paid by Davis, Bell & Davis, John Julian, R. F. Johnson, and P. E. Kern, said Mc-Kelligon and his wife transferred to P. E. Kern an undivided 400 acres out of the said survey 270, and the deed was filed for record in El Paso county and recorded on the 7th day of January, 1893. On January 6, 1893, by a deed duly recorded on the 7th day of said month in El Paso county, McKeliigo'n and wife, for a consideration of $4,500 paid, conveyed 150 acres undivided interest in the said survey to P. E. Kern by warranty deed recorded on the 7th day of January, 1893, and on the same day the said McKelligon and wife for a consideration of $1,500 by warranty deed conveyed an undivided interest of 50 acres of the said land to P. E. Kern. On January 27, 1891, for a consideration of $200 paid, McKelligon and wife conveyed by warranty deed to Ella Agnes McKelligon 40 acres in the said survey, which deed was recorded on the day of its date. It will be seen that McKelligon for a valuable consideration conveyed all of the land to the parties named.

Plaintiff in error insists that the forfeiture of the sale made by the state to Rogers was not lawfully forfeited; therefore the patent which subsequently issued to Mc-Kelligon was void. It is not necessary for us to review the facts of that sale and the forfeiture thereof, because Breen was not in privity with the state, but his right depended wholly upon the action of Rogers in maintaining his right in the land by a compliance with the law then in force. The failure of Rogers to pay the interest upon the purchase price conferred authority upon the officer to declare the forfeiture of the contract, which he did in accordance with the terms of the law. Under the act of 1887, McKelligon, being then living upon the land and claiming it as hi's own, had the right to purchase it from the state, which he did, paid the price to the state, and patent was issued which vested title thereto in McKelligon. The forfeiture of the purchase by Rogers terminated the claim which Breen had in the land. The only claim which Breen can assert to the land in question is under the doctrine of estoppel against McKelligon, arising upon the terms of the deed made by McKelligon to him. If it were necessary to decide that question, it would present some interesting points of law, but, in the view that we take of it, we will assume that the character of the deed from McKelligon to Breen was such that, if McKelligon now owned the land, it would work an estoppel in favor of Breen. Proceeding upon this basis, the crucial question in this case is, Was it necessary for the subsequent'purchasers from Rogers, who each paid a valuable consideration and had no actual notice, to look beyond the title which McKelligon derived from the state by his pur-' chase to ascertain if, previous to the acquisition of the title, he had conveyed the land to another.

Bearing in mind that the title to the land was in the state at the time that Mc-Kelligon made his application to buy, it necessarily follows that the title' of McKelligon originated in the. sale to him by the state on his application dated the 6th day of July, 1887, which was about two years subsequent to the date of the deed made by him to Breen. This brings us to the question whether it was the duty of those who bought from McKelligon without any notice of the deed to Breen for a valuable consideration paid to look beyond the origin of McKelligon’s title to ascertain the fact of previous sale to Breen. The rule of law which governs such transactions is stated thus by Mr. Tiffany in his work on Real Property (volume 1, § 476, p. 1080): “A purchaser is not, as a general rule, charged with notice of a conveyance which is of record, even though made by a person in the chain of title, unless it was made by such person after the time at which the records-show him to have obtained the title; that is, the purchaser is not bound to search the records to determine whether any particular person in the chain of title, previous to obtaining the title, had done any "acts which would affect the title.” Mr. Pomeroy in his-Equity Jurisprudence (volume 2, §. 658, p, 1133) states the same rule in this language: “How far back is a purchaser bound to-search the record title of his own vendor?" If the records show a good title vested in the vendor at a certain date, and nothing done by him after that time to impair or incumber the title, it would seem that the policy of. the registry acts is thereby accomplished-The purchaser is protected. He is not bound to inquire farther back, and to ascertain whether the vendor has done acts which, may impair his title prior to the time at. which it was vested in him as indicated by tke records.” Of the multitude of cases on this subject we cite the following which sustain the text of the two authors above cited:. Calder v. Chapman, 52 Pa. 359, 91 Am. Dec. 163; Farmers’ Loan & Trust Co. v. Maltby, 8 Paige (N. Y.) 361; Bingham v. Kirkland, 34 N. J. Eq. 229.

The application of this rule of law to the-present case can best be made by a statement of the facts as they must have occurred, at the time. When each of the purchasers-from McKelligon sought to make the purchase, it became his duty to see that there-had been no previous sale or incumbrance-placed upon the land. For illustration we-will suppose that Mr. Kern, who became the principal owner of the land, in making his-purchase, should have gone to the record, there, and found that the title of McKelligon originated in his purchase in 1887 and matured in a- patent thereafter, he then examined the record from that time down to the-date of his purchase, and found no instrument of any character recorded whereby the title from McKelligon would be incumbered or impaired. Now let us suppose that Mr. Kern had undertaken to investigate the-matter- as to what might have transpired anterior to the sale by the state to McKelli-gon. If he must look beyond the origin of the title under which he was purchasing, then how far should he follow that record back in the course of time in order to determine whether MeKelligon had made a previous sale of that land? If required to go beyond the origin of the title, there could be no limit short of the vendor’s life, and such requirement of purchasers would involve land titles in such uncertainty that it would be impracticable to rely upon any investigation.

We believe that the rule stated above that the date when the title originated in McKel-ligon marked the limit of investigation for previous sales or incumbrances of that tract of land by MeKelligon should be applied here. It would be unreasonable to suppose that a man who had just received a title from the state had previously made a transfer of that land. That ordinary care and caution which the subsequent purchaser must exercise would not suggest an investigation for conveyances made before acquisition of title. It follows that the record of Breen’s deed in El Paso county gave no notice to the subsequent purchasers from MeKelligon who had no actual notice and paid a valuable consideration for the land.

There are many interesting questions ably discussed in this case by the learned judge who wrote the opinion, but, since Breen had no title upon which to recover and had no right of estoppel as against the innocent purchasers, the judgment against him in favor of all the defendants was properly rendered, and is therefore affirmed.  