Willis v. Gay.

sion, but stands with the weight in favor of an affirmance of the last decision of this court upon it.

The main object of the views and considerations that have been here now presented, is to show that the last decision in the case of The City of San Antonio v. Gould is sufficiently well grounded in law, as that it should not be readily reversed, and thereby add another to the changes of decision by this court on a question, both sides of which may be sustained with plausible reasons, as may be seen in the briefs of counsel in this case, and in the opinions and briefs of the two preceding cases.

Following the last decided case as a precedent, we decide that the twelfth section of said act of incorporation is violative of the Constitution, and that the District Court did not err in dismissing the suit to recover upon a bond and interest coupons given under its authority.

Although taking security for the payment of the purchase-price of land raises a presumption that the vendor has waived his lien therefor, yet this presumption may be rebutted by circumstances showing an intention to preserve the lien.*

A grantee is held to have notice of all facts recited in his deed. Where a recorded deed recited that the consideration "was secured" to be paid by the grantee, it was held that one who claimed title under him was thereby notified that the purchase-price had not been paid, and he was put on inquiry, and could not take the land divested of the vendor's lien.

A

CTION on a promissory note and to foreclose a vendor's lien. The action was brought by Appleton Gay, as administrator of Uri Brooks, to recover a balance due on a promissory note executed by G. A. Matthews, as principal, and Jones, and S. W. Mat

* See Fonda v. Jones (42 Miss. 792), 2 Am. Rep. 669,

Willis v. Gay.

thews, deceased, as sureties, to Brooks, for land conveyed to G. A. Matthews by Brooks, by a deed subsequently recorded, Brooks claiming a vendor's lien. G. A. Matthews subsequently conveyed to L L Matthews, who had actual notice of Brooks' unsatisfied lien. L L Matthews subsequently made a deed of gift of the land to his minor children, and about the same time the land was sold on execution to the defendants Willis & Brother, under a judgment recovered by them against L. L. Matthews, and it had also been in like manner sold to defendant Smith, another judgment creditor of L. L Matthews. Willis & Brother denied the lien, and alleged that the taking of personal security waived it. Verdict for the plaintiff for the balance of the note, and that Brooks had a lien and judgment therefor and for foreclosure of the lien, and against the claim of the minor children. Willis & Brother appealed. other facts appear in the opinion.

N. H. & J. R. Davis, for appellants.

Baker & Botts, for appelle.

The

ROBERTS, C. J. There are forty-five grounds of error assigned in this case, presenting all the questions that arose upon the trial in the District Court. The record, contained in 214 pages, presents the case for adjudication, upon all of the matters involved in it, the same as it was presented in the court below. The effect of the appeal, under such circumstances, is simply to transfer the case from one court to the other for retrial upon all contested points, without any responsibility being assumed by counsel of selecting and presenting any particular questions of law or of fact for adjudication in this court. To present the views of the court upon each and all of the errors assigned separately, would require a voluminous opinion, disproportioned to the importance of the questions raised by most of them. The necessity is, therefore, devolved upon this court of selecting and presenting such questions as are deemed important to be considered, in determining whether or not the judgment should be reversed.

First, then, as to the correctness of the charge, which, upon the leading point in the case, was, in substance, that though taking a note in payment for the land, with sureties thereon, raised a presumption of a waiver of the vendor's lien, still that presumption VOL. XXVI — 42

Willis v. Gay.

might be rebutted by proof that the vendor relied upon the land as well as upon security given for the payment of the purchase-money. This is in accordance with the decisions of this court. Ellis v. Singletary, 45 Tex. 27; Faver v. Robinson, 46 id. 206. The pleading and evidence were sufficient to sustain the verdict of the jury, in favor of the plaintiff below, under this charge.

The next question is,- Did Willis & Bro. have notice of this lien at the time their judgment was rendered? there being no doubt as to actual notice having been given to them on the day of sale, under their own execution, when they purchased the land.

The deed from Brooks to G. A. Matthews reads as follows, to wit: "Know all men by these presents, that we, Uri Brooks and Sarah Brooks, wife of said Uri, of the State and county aforesaid, for and in consideration of $2,700 secured to be paid to us by George A. Matthews, the receipt of which is hereby acknowledged, have granted," etc. This deed was executed and recorded in 1859, long before the attachment and judgment in favor of Willis & Bro. against L. L. Matthews, to whom the land was sold by G. A. Matthews in 1865; and who, it is averred and proved, had personal notice of the claim of vendor's lien given by Gay, administrator of Brooks' estate, at the time of his purchase in 1865.

It is well established, that if a fact is recited in a deed, through which a party claims title to land, he is held to have notice of that fact. Willis & Bro. claim title to the land under this deed from Brooks and wife to G. A. Matthews. And it being recorded would also give them notice. The recital in this deed, that the consideration was "secured to be paid to us by George A. Matthews," clearly conveyed the intelligence, to any one who might inspect it, that the money was not paid down for the land, and that it was secured by said Matthews, to be paid at some future time. Though this does not amount to an express contract retaining a lien upon land, for the want of appropriate terms, yet it is the recital of a fact which was well calculated to put a subsequent purchaser upon inquiry, which, if followed up in the right direction, would, as shown by the proof, readily and certainly have led to full notice that the purchase-money had not been paid to Brooks, or to Gay, the administrator of the estate. That is sufficient to charge Willis & Bro. with notice of the lien. Johnson v. Gwathmey, 4 Litt. (Ky.)

317.

Again, Willis & Bro. pleaded, in defense of the action on the

Gee v. Scott.

note, in order to defeat the operation of the lien to their prejudice, that Jones, one of the sureties on the note from George A. Matthews to Brooks, had and owned, at and before the institution of this suit, allowed claims against Brooks' estate to an amount larger than the debt sued on, by which it was extinguished, the estate of said Brooks being solvent. The evidence admitted to go before the jury failed to establish these facts. [Omitting a question of evidence.]

A statute removing the disability of witnesses, on the ground of interest, does not render husband and wife competent witnesses, the one for or against the other, even as to matters not confidential.

A

CTION to try right of property in goods, claimed by Gee as a judgment creditor of T. L. Scott, as against the wife of the latter. On the trial the evidence of the husband was admitted on behalf of the wife. Verdict and judgment for Mrs. Scott, and Gee appealed.

Breedlove & Ewing, and A. W. McIver, for appellant.

Sayles & Bassett, for appellee, cited 1 Greenl. Ev. 239, 240; Flaek v. Neill, 26 Tex. 273; Merriam v. Hartford & N. H. R. R. Co., 20 Conn. 362; Littlefield v. Rice, 10 Metc. (Mass.) 287; Andrus v. Foster, 17 Vt. 556; Gay v. Rogers, 18 id. 342; Pedley v. Wellesley, 3 C. & P. 558.

MOORE, J. The material question presented for our consideration in this case is whether, since the enactment of the statute of May 19, 1871, declaring that in the courts of this State there shall be no exclusion of any witness in civil actions because he or she may be a party to, or interested in, the issue to be tried, the husband or wife of one of the parties is disqualified from testifying, on behalf of such party, as to matters of which the witness can speak from

Gee v. Scott.

general knowledge, as contradistinguished from facts or informa tion derived from confidential intercourse during the marital relation.

Unquestionably, by the common law, neither the husband nor wife could testify for or against the other, or, in a suit to which the other was a party, or had a direct or immediate interest, except in a few exceptional cases, in which their testimony is held admissible on the ground of necessity. As, for example, in prosecutions for violence committed by the husband upon the wife; or in an action by the husband against a carrier for the contents of a lost trunk; or to prove the original entries of an account, where the wife kept the husband's books, etc.

To determine the effect of the statute referred to on the common-law rule, that neither the husband nor wife could testify for or against the other, it is necessary to ascertain upon what ground the rule is based, and why they were held incompetent. For, evidently, if they were excluded solely upon the ground of interest resulting from the personal unity of husband and wife, as the stat ute declares in plain and positive terms that interest shall be no ground for the exclusion of any witness, the common-law rule is abrogated, and they cannot be excluded from testifying. If, on the other hand, there is some other ground upon which, by the common law, the husband and wife are held to be incompetent to testify, as to matters of general knowledge, for or against the other, the statute does not reach or repeal it, and the courts must still enforce the common-law rule, until still further modified by the legislature.

Was interest, then, the sole ground for the exclusion at common law of the husband and wife as witnesses in cases to which the other was a party or had an interest? Unquestionably it is not, when the proposed evidence of the husband or wife relates to, or touches upon, matters of confidential intercourse during the mar ital relations. Testimony of this character, beyond doubt, is inadmissible at common law, upon the ground of public policy, aside from all consideration of identity of interest of the husband and wife in the issue tried, or of the fact that one of them is a party to the record. And hence it is universally held, whenever the question has been presented, that matters of this character cannot be testified to by the husband or wife, notwithstanding the fact that the common-law rule, that interest disqualifies a witness, has been