Andrews v. Smithwick

Citations

• 34 Tex. 544

Syllabus

<p>1. The rulings in the case of Hudson v. Wheeler, ante 356, on the subject of fraud in connection with the defense of limitation, referred to and approved in this case.</p> <p>2. Defendant being entitled to a land certificate assigned it to the plaintiff, but afterwards fraudulently obtained possession of it and converted it to his own use, and being sued for it or its value pleaded the limitation of two years. Held, that defendant on obtaining possession of the certificate held it as trustee for the plaintiff, and will be presumed to have continued to hold it in that character, regardless of his claim of ownership, until the plaintiff either had actual notice of the fraud and adverse claim, or until, by the use of ordinary diligence, he might have discovered them; and the plaintiff’s action would not be barred until two years thereafter.</p> <p>3. What lapse of time was a reasonable period for the owner to have discovered the fraud was a question for the jury, to be determined by them on all the circumstances proved and under proper instructions; but neither the records of the Adjutant General’s office, nor the registration in the county clerk’s office of a deed of the defendant, could operate as constructive notice to the owner, of the fraudulent claim adverse to him.</p> <p>4. The registration of a deed in the proper office is made by law constructive notice of bona fide conveyances, but no such effect is attached by law to the registration of frauds, so as enable the fraudulent party to effectuate his fraud.</p> <p>5. Registration of a deed is an act of notoriety, which might in the course of time create a presumption of notice of an adverse fraudulent claim ; but whether such presumption would arise within one or ten years after'.the registration, it would be for the jury to decide in view of all the facts in evidence.</p>