Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Tyler term, 1884, and the Galveston term, 1885. Volume 63. Page: 75
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1885.] SMITH v. MILLER. 75
Opinion of the court.
and emphasis to the fact of Miller's possession, while under the
facts of the case its importance is very much diminished.
Suppose that at some former period Mrs. Smith knew that Miller
claimed under a supposed purchase from Collins (though there is no
proof of that fact), still, after his lease from Whitsett in 1870, and
from her in 1871, she could not be required to suppose that he persisted
in a claim which he had abandoned when he became a tenant.
And certainly his possession of the land could not be constructive
notice to her of a claim wholly inconsistent with his tenancy.
The effect of possession is simply to put persons who desire to
purchase upon inquiry, and it does not determine what the inquiry
shall be or of whom it shall be made. Justice Stayton in Eylar v.
Eylar, 60 Tex., 319.
But a person in possession of land may, by his own acts, divest
his possession of those attributes which cause it to put purchasers
upon inquiry.
If A., who is in possession of land conveys to B., and the deed is
duly recorded, then a purchaser from B. need not notice the possession
of A. Eylar v. Eylar, sutpra.
Now Miller's position in this case is little or no better than that of
A. I-e had held the land for some years, claiming under a parol purchase
from Collins. When he learned, that Collins had conveyed
the land to Whitsett, he made an agreement with the latter by which
he renounced his claim to the land and took a lease.
After the land had been sold to Mrs. Smith, but before it was
actually conveyed, he took a lease from her -she being fully informed
of his previous lease from Whitsett.
But he says that he took these leases by mistake, and in ignorance
of his rights, and is therefore not estopped by them. Be it so.
Let it be admitted that he may still dispute the claim of Mrs.
Smith. Still that does not affect the question of notice. Mrs. Smith
did not know that he was acting under a mistake and if any person
must suffer by it he must be that person.
He cannot claim that his possession must still be notice to her of
a claim which he would have persisted in asserting but for the mistake.Under the circumstances, our opinion is that nothing short of an
open, unequivocal renunciation of the tenancy, brought h ome to the
knowledge of Mrs. Smith before her purchase, would be sufficient.
See Carter v. La Grange, 60 Tex., 636; also, Satterwhite v. Rosser, 61
Tex., 166. Mere refusal to pay the rent would not do, because that
might arise from a variety of causes.
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Tyler term, 1884, and the Galveston term, 1885. Volume 63., book, 1885; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28511/m1/99/: accessed April 26, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .