Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Galveston term, 1877, and embracing the cases decided during the Austin term, 1877. Volume 47. Page: 459
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1877.] TAYLOR V. HARRISON. 459
Opinion of the court.
administrator for the payment of his debts; and, 2d, if this
is not a sufficient answer to appellant's claim, appellee further
maintains, that as the deed from the administrator, under
ihich appellant deraigns his title, is merely a quit claim, he
will be held to have purchased with notice of the prior unrecorded
deed. (Rodgers v. Burchard, 34 Tex., 453.)
In response to the first of these objections, it will suffice to
say, that we see no reason why a purchaser from the heirs or
representatives of the vendor, if he purchases and pays for
the land, without actual or constructive notice of the previous
sale, is not as fully within the spirit and equity of the statute
as a second purchaser from the vendor himself. And so it
has been heretofore held by this court, (Love v. Berry, 22
Tex., 378,) in accord, as we think, with the general current
of decisions elsewhere upon the subject. (See Youngblood
v. Vastine, 46 Mo., 239, reviewing the cases, and overruling
the case of McCamant v. Patterson, 29 Mo., 110, cited in
Rodgers v. Burchard, 34 Tex., 453.)
Preference is not given to the second vendee, or to a
purchaser under execution, because there is any title or interest
in the land remaining in the vendor, after.he has once
sold and conveyed it, but simply because it is a rule of public
policy, prescribed by statute, for the protection of innocent
parties against fraud.
Creditors, as has been frequently held, are as clearly protected
by the statutes upon this subject as purchasers. And
certainly we can see no reason for holding that they lose the
preference given them over the negligent purchaser who fails
to have his deed recorded, because the creditor is forced to
go into the Probate instead of the District Court to collect
his debt, or because the land is sold by the administrator,
instead of the sheriff.
The second objection urged by appellee, if applicable to the
case, is, we think, a much more embarrassing question.
In the case of Rodgers v. Burchard, 34 Tex., 453, it was
said by the court that an absolute deed, though unregistered,
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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 Galveston term, 1877, and embracing the cases decided during the Austin term, 1877. Volume 47., book, 1878; Houston, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28526/m1/467/: accessed February 26, 2021), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .