Full opinion text
NYE, Justice. This is a trespass to try title action filed by Jack Rattikin, Trustee, against Matías Sandoval and wife Teresa Sandoval, appellants. The appellants filed their answer, a plea of not guilty, in the trial to the court without a jury. Judgment was rendered for title and possession for appellee Ratti-kin. Appellants have perfected their appeal to this Court. The record contains a statement of facts. No findings of fact or conclusions of law were requested by either party or filed by the trial court. The appellants do not attack the sufficiency of the evidence produced by appellee at the trial, nor do they contend that the trial court was not authorized to enter judgment. The appellants filed a motion for new ^-trial contending in effect that they had a /complete and meritorious defense and had it ■ not been for the lack of adequate representation by their attorney a different result would have been obtained in the trial. The trial court conducted a complete and thorough hearing on appellants’ motion for new trial. The hearing on the motion for new trial contained 128 pages of testimony in the statement of facts. The record at the hearing on the motion for new trial showed that the appellee had filed suit against the appellants over three years prior to the trial of the case. Appellants immediately employed an attorney to represent them who filed the answer. Appellee made numerous requests for setting of the case. Two weeks prior to the final setting, appellants’ attorney filed a motion requesting permission to withdraw for the reason that the appellants had refused to cooperate with him in the defense of the case. This attorney suggested that appellants contact another attorney. The appellants contacted the Legal Aid attorney, a Mr. Henry, a lawyer of some fifty-two years of experience who agreed to represent and did represent the appellants at the trial. He interviewed the appellants on two occasions prior to the trial. Mr. Henry did not ask for a continuance, but announced ready and proceeded to trial. He stated to the court that the appellants’ original attorney had withdrawn from the case and that the appellants had come to him stating that they were unable to pay an attorney to represent them and that he agreed to represent them. He objected to the introduction of one of the deeds on the ground that the appellants claimed that it was a mortgage and not a deed, and placed both of the appellants on the stand to testify. The trial court overruled the objection and, upon the close of the testimony, rendered judgment for ap-pellee. Appellants discharged Mr. Henry and employed a third attorney who filed a motion for new trial and prevailed on the trial court to conduct a thorough hearing on the merits of the case. This, the trial court did. During the hearing on the motion for new trial the appellants attempted to prove their defense to the main suit, contending the deed from the appellants to the appellee’s predecessor in title was in reality a mortgage and that the appellee had constructive notice of such fact prior to his purchase. A motion for new trial primarily consists of re-examination of the issues forming a basis for probable error with a view by the trial court to correct errors that have occurred in the course of the preceding trial. The object is to point out and call to the attention of the trial judge such errors complained of, so that he may have an opportunity if need be to correct them. Stillman v. Hirsch, 128 Tex. 359, 99 S.W.2d 270 (1936). Generally, the new trial may be granted and a judgment set aside where the motion shows good cause and the errors complained of affected the result of the trial, or might have reasonably affected the result, so as to justify or require the granting of a new trial. Rule 320, Texas Rules of Civil Procedure. The complaining party must show that their complaint was a material one and that injury has been done so that a fair and impartial trial has not been had. The hearing on the motion for new trial is not a means by which the case may be tried over or tried differently. Crossley v. Crossley, 306 S.W.2d 388 (Tex.Civ.App.1957). Appellants’ first and second points complain of the trial court’s ruling in overruling their motion for new trial because the trial court’s implied findings in its order in overruling the motion was to the effect that ap-pellee had knowledge of circumstances which would be reasonably calculated to put him on notice of a simulated conveyance. Appellants do not attack the main case, but in effect contend that sufficient evidence was presented during the hearing on the motion for new trial as would entitle them to a judgment had such defense been presented completely in the main case, and, therefore, the court erred in not granting a new trial. The application for new trial is addresssed largely to the sound discretion of the court. 41 Tex.Jur.2d 59 § 21. The hearing on the motion should be presented to the court to show that the substantial rights of the parties have been violated and to make it reasonably clear that a fair trial had not been bad. Hartford Accident & Indemnity Company v. Gladney, 335 S.W.2d 792 (Tex.Civ.App.1960, wr. ref., n. r. e.). The evidence adduced at the hearing on the motion for new trial was not claimed to be newly discovered evidence. The record clearly shows that the appellants were given ample opportunity to develop the evidence that might have constituted their defense, not only during the first trial, but again during the hearing on the motion for new trial. The trial court did not find that appellants were entitled to a new trial and overruled their motion. Trial judges should properly exercise the power of granting a new trial in order to protect a litigant from definite wrong. The discretion .of a trial court in granting a new trial is practically unlimited. On appeal, however, it is not our duty to pass on the equities of the case or to substitute our discretion for that of the trial court, but to determine whether or not the trial court abused its discretion in refusing to grant a new trial. On the hearing on the motion for new trial, based on the alleged error that appellants had a complete defense to the suit, the movants must show that they were not afforded an opportunity to present such defense, without any fault of their own, and that the failure of the trial court to grant them a new trial for this reason, was an abuse of its discretion in such matters. We do not find that appellants were not afforded an opportunity to present their defense, or that there was sufficient evidence of a meritorious defense presented during the hearing on the motion for new trial for us to say that the eminent trial judge who heard the case tried originally and presided over the hearing on the motion, abused his discretion in denying appellants a new trial. Other facts developed at the hearing on the motion for new trial showed that the appellants deeded the property in question to Bosquez in an instrument dated February 14, 1950. The deed was recorded in the Deed Records of Nueces County on the 3rd day of March, 1950. Appellee purchased the property from Bosquez on December 28, 1958. Appellants remained in possession of the property. It is undisputed that the deed from the appellants to Bosquez was on its face an absolute and unconditional conveyance of the property in question. As a general rule, when possession is held by one other than the vendor of the record title, the purchaser is charged with knowledge or put upon inquiry as to the rights of the possessor, the same as though such rights were of record. However, in the absence of knowledge of any facts to the contrary, the purchaser is not bound to make inquiry beyond the recorded deed executed by the one in possession purporting to convey the land to the person from whom the purchaser is acquiring same. Williams v. Rabb, 161 S.W.2d 121 (Tex.Civ.App.1942, wr. ref.); Eylar v. Eylar, 60 Tex. 315; National Bond & Mortgage Corporation v. Davis, Tex.Com.App., 60 S.W.2d 429; Park v. Sweeten, 270 S.W.2d 687 (Tex.Civ.App.19S4), affirmed 154 Tex. 266, 276 S.W.2d 794; Baylor v. Ramos, 290 S.W.2d 273 (Tex.Civ.App.1956, ref., n. r. e.); 43B Tex.Jur. 65 § 754; Dorsey v. Temple (Tex.Civ.App.), 103 S.W.2d 987, 995, states the applicable rule: “A rule of property has long been established in this state that where a grantor, after executing a deed to land, absolute and unconditional on its face, continues to remain in possession, a purchaser from the grantee may rely upon the terms of the deed as a declaration of the grantor that he has parted with title, and, as a matter of law, is relieved of further inquiry.” We do not find that there was any substantial evidence of any facts shown during the trial or the hearing on the motion for new trial that would put the appellee on notice or inquiry of any of the contended adverse rights of the appellants. On appeal from an order overruling the motion for new trial the appellate court will take the most favorable view of the evidence that the trial court was authorized to take. The order overruling the motion for new trial amounts to an implied finding adverse to the allegations in the motion and the reviewing court will assume that the trial court found adversely as to all material facts alleged by the complainant. Liberty Cab Co. v. Green, 262 S.W.2d 522 (Tex.Civ.App.1953 wr. ref., n. r. e.) ; 41 Tex.Jur.2d 470, § 218. Appellants’ remaining points complain of the trial court’s failure to grant them a new trial because their second attorney (the Legal Aid attorney) admitted he did not have time to prepare and present the appellants’ case, and, therefore, appellants’ present attorneys claim a violation of the appellants’ rights to adequate representation under Amendment XIV of the Constitution of the United States. Appellants’ Legal Aid attorney admitted he had considerable title experience and had worked in a title company previously. Although the attorney did not press the defense now urged by the appellants, that the deed should be construed to be a mortgage, he did see to it that the appellee proved his case at the trial. No objection is made here that the proof was insufficient. We do not know whether such attorney at the time of the original trial planned on a third-party action against Bosquez or some other party. However, the appellants’ trial attorney made no such admission until after the trial court had ruled against him and he had lost his case. Appellants’ points are overruled. In the absence of fraud, a party is as fully concluded by the acts of his attorney as if he were acting for himself. The court will not set aside the judgment because of the negligence or the mistakes of his attorney. 34 Tex.Jur.2d 68, § 213; 25 Tex.Jur. 614, § 206, and cases cited therein; Estey and Camp v. Luther, 142 S.W. 649 (Tex.Civ.App.1911, wr. ref.); O’Quinn v. Tate, 187 S.W.2d 241 (Tex.Civ.App.1945 wr. ref.). Appellants argue that after the trial of the main case and after they had notified Mr. Henry (the Legal Aid attorney) through their newly acquired lawyers, that they had employed different attorneys, Mr. Henry approved the judgment as to form so as to cause the judgment to be entered by the trial court. The appellants contended that such unauthorized act by Mr. Henry entitled them to a new trial. Citing Metts v. Waits, 286 S.W. 923 (Tex.Civ.App.1926); Maeding v. Maeding, 155 S.W.2d 991 (Tex.Civ.App.1941). These cases are not in point. It is not a condition precedent to the proper entry of a judgment for opposing counsel to approve the judgment as to form prior to its entry by the trial court. This is a matter of professional courtesy and its lack of approval as to form does not render such entry of the judgment invalid. Appellants contend that the trial court has the responsibility of appoint!::,- an attorney under Article 1917, Vernon’s Ann. Tex.Civ.St. This article provides that judges of district courts may appoint attorneys to attend a party who is too poor to employ counsel to attend to the same. ^Xliis provision is not mandatory. There is nothing in the record that indicates that appellants brought this to the attention of the trial court. The appellants did not file any affidavit that they were to poor to employ counsel. They were represented at three different stages of the law suit by three sets of attorneys. We do not find that their rights have been violated under Article 1917, V.A.T.S., or under Amendment XIV of the Constitution of the United States^ Appellants do not claim nor was there any evidence of fraud on the part of the appellee. Appellants do not attack the judgment as not being in accord with the evidence or ruling of the trial court on the trial of the merits. Appellants have not shown that they have a meritorious defense as a matter of law, that they were prevented from urging because they were not represented or inadequately represented by counsel at the trial. The trial court heard all the facts (at two different occasions) and did not determine that the appellants had, or were deprived of the opportunity of showing a meritorious defense. We do not think in view of the record as a whole, that the trial court abused its discretion in overruling the appellants’ motion. Watson v. Todd, 322 S.W.2d 422, (Tex.Civ.App.1959) ; Hartford Accident & Indemnity Co. v. Gladney, supra. The judgment of the trial court is affirmed.
SHARPE, Justice (dissenting). I respectfully dissent. On the hearing of the appellants’ (San-dovals’) motion for new trial below it was conclusively established that they had not been accorded their day in court nor their right to due process of law under the Fourteenth Amendment to the Constitution of the United States of America. In my opinion, the lower court should have set aside the judgment under which the Sandovals lost their homestead and granted them the new trial which they sought. The legal injustice in this case was brought about because the Sandovals, due to their poverty and inability to employ an attorney of their own selection, were required at the trial to rely upon the services of a legal-aid attorney furnished by the county, and such attorney failed to render the effective assistance of counsel to which they were entitled, in that he did not present the necessary and available defense of the Sandovals, which, if established, would have defeated appellee’s (Rattikin’s) suit. The Sandovals are illiterate, non-English speaking indigents of Mexican extraction, who were sued for title and possession of their homestead in which they had resided for many years. After the trial of their case in which they were purportedly represented by legal-aid counsel, when the Sandovals discovered their homestead had been lost, they enlisted the services of attorneys of their own selection who thereafter represented them on their motion for new trial in the lower court and on this appeal. The legal-aid attorney made a number of serious mistakes which, in my view, operated to deny his indigent, involuntary clients a fair trial. The contentions made by the Sandovals, through their present counsel, on this appeal present important questions concerning the subjects of the duty of an attorney to his clients, what an indigent defendant in a civil case can reasonably expect from an attorney furnished by the legal-aid office of a county or under appointment of the court, judicial sensitivity to the duty of protecting constitutional rights and to due process of law, and the responsibility of furnishing judicial guidance necessary to achieve such purposes in civil cases involving property rights. Since it appears that the county actually furnished legal-aid counsel to the Sandovals in this case, we are not called upon to decide any question relating to the obligation in the first instance of the state or county to furnish counsel to an indigent in a civil case. However, the questions which are squarely presented, and which we must squarely face are as follows: Where an indigent defendant is furnished legal-aid counsel in a civil case by a county (a subdivision of the State of Texas), does the failure of ' such counsel to render effective assistance in the protection of the property rights of the client, resulting in the loss of same, amount to a denial of due process of law under the Fourteenth Amendment to the Constitution of the United States? Where such a showing is properly made after entry of judgment, does the failure of the court to grant a motion for new trial amount to a denial of such due process? The Fourteenth Amendment to the Constitution of the United States provides, in part, as follows: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Although there are a few civil cases dealing with the subject, most of the decisions concerning the meaning and necessity of the effective assistance of counsel involve criminal cases or post-conviction proceedings arising out of criminal cases. However, allowing for the fact that there is a Sixth Amendment guarantee of counsel in criminal cases and for other significant differences between criminal and civil cases, the decisions in a number of authoritative criminal cases furnish compelling analogies and guide lines for ascertaining the presence or absence of effective assistance of counsel in civil cases. The Supreme Court of the United States has held that where life or liberty of a defendant is involved in a criminal case, there is a constitutional right to the effective assistance of counsel in state as well as in federal cases. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). Under the Fourteenth Amendment a defendant in a state criminal court case may not be deprived of the effective assistance of counsel without offending due process. Is due process no less offended where, as here, indigents are deprived of their property in a civil case without effective assistance of counsel ? Even though the rights to be protected are different, is the meaning of effective assistance of counsel the same in civil cases involving property rights as it is in criminal cases involving life or liberty? If a litigant is too poor to secure counsel of his own choosing and is furnished counsel by appointment of the court or by the state or a sub-division thereof or by a legal-aid office, are the basic obligations and duties of the attorney to his clients, within practical limitations, the same? This Trespass To Try Title suit was filed by Rattikin, Trustee, (appellee), against Matias and Teresa Sandoval, husband and wife, to recover title to their homestead located in Robstown, Nueces County, Texas. Originally, the Sandovals employed an attorney of their own selection, but he withdrew from the case when they were unable to pay him. Thereafter, the Sandovals went to the legal-aid attorney for the county, and he agreed to, and purported to, act as their attorney at a non-jury trial held on August 7, 1963. The trial could not have lasted more than about thirty minutes. Formal entry of the judgment in favor of Rattikin was made on August 12, 1963. The Sandovals’ defense which the legal-aid attorney did not present on the trial of the case was that one of the essential instruments in the chain of Rattikin’s title was a mortgage and not a deed, and that Rattikin had notice, or its equivalent, of such fact. A clear understanding of what took place upon the trial of this case is essential in order that the important questions presented here may be correctly resolved. A step-by-step analysis of the Statement of Facts will now be made. The judge called the case for trial and counsel for Rattikin, the plaintiff, announced ready. Legal-aid counsel then told the court that he was representing the San-dovals because their former attorney had withdrawn and they were unable to employ an attorney. Counsel for Rattikin then stated that he relied on the record title and had marked the three exhibits to support such title, that is, certified copies of the two deeds from Soward to Sandoval (Ex. 1), from Sandovals to Bosquez (Ex. 2), and the original deed from Bosquez to Rattikin (Ex. 3). Counsel for Rattikin further stated that legal-aid counsel had agreed that the certified copies of said deeds could be introduced without their having been filed and notice given (as is required by the Texas Rules of Civil Procedure), and he then summarized the said three exhibits. ' Legal-aid counsel then made an objection to the deed from the Sandovals to Bosquez, which was overruled as to admissibility but not as to effect. Counsel for Rattikin then rested his case. Following such action, Matias Sandoval and his wife, Teresa Sandoval, testified in Spanish with the assistance of the Official Spanish Court Interpreter. The legal-aid attorney asked Matías Sandoval fifteen questions of which fourteen were answered, constituting testimony to the effect that Sandoval had bought the property in question about 1944-45, had reared a family there, that some of his children were married but five of them were living at home on August 7, 1963, the date of trial herein. The one unanswered question asked by the legal-aid attorney of Mr. Sandoval was this: “Tell the court about the transaction with Mr. Bosquez.” Counsel for Rattikin objected to such question and the court reserved ruling and carried it along with the case. Legal-aid counsel did not repeat the question nor did he insist upon an answer to it nor did he ask any other question of Mr. Sandoval concerning his defense to Rattikin’s suit, either concerning the deed to Bosquez or Rattikin’s notice that the same was a mortgage. There is no showing that the said unanswered question was translated into Spanish and actually asked of Mr. Sandoval; and it may not have been answered on account of the interruption caused by the objection made by Rattikin’s counsel. After Mr. Sandoval’s testimony was concluded, the legal-aid attorney then called Mrs. Teresa Sandoval to the stand. She was asked six questions which were answered by her to the effect that she was the wife of Matias Sandoval and had lived on the property in question continuously since 1945. The legal-aid attorney did not ask Mrs. Sandoval a single question concerning the defense to Rattikin’s suit. The legal-aid attorney then rested the Sando-vals’ case. Counsel for Rattikin did not cross-examine either of the Sandovals and offered no further evidence. The Sandovals, through their present counsel, affirmatively established that the failure to present their defense to Ratti-kin’s suit on the said trial was due to the failure of the legal-aid attorney to render effective assistance of counsel. This showing, made on the hearing of the motion for new trial, included the testimony of the legal-aid attorney who frankly admitted that, although he had announced ready and proceeded to trial when the case was called, he was not actually prepared for a trial in which he could present the Sandovals’ defense. The legal-aid attorney gave several reasons or excuses for his said coun-duct. However, it was made abundantly clear on said hearing that any competent attorney with only a minimum amount of time, effort and research could have been adequately prepared to present the Sando-vals’ defense to Rattikin’s suit. The witnesses, Mrs. Rangel (Valle) and Mr. M. G. Bosquez, lived at Robstown, Texas, about 17 miles from the Courthouse at Corpus Christi, Texas, where the case was tried. They could have easily been called as witnesses on the trial as they were on the hearing of the motion for new trial, and could have been subpoenaed, if necessary. The documents offered at the second hearing, which were not offered on the trial by the legal-aid attorney, were either in possession of the Sandovals or Rattikin, and could readily have been obtained by voluntary production or by process. It clearly appears that the pre-trial efforts of the legal-aid attorney amounted to less than token preparation and his conduct in court was no more than a pro forma appearance. Further analysis of the evidence developed on the hearing of the Sandovals’ motion for new trial will point up the important material facts to which we must give consideration. It was clearly shown that potent evidence could have been produced at the trial to establish that the purported deed to Bosquez was a mortgage and that Rattikin had knowledge or notice of such fact. First of all, it was established that Bos-quez and Rattikin became interested in the Sandovals’ homestead property because they each wanted to collect indebtedness claimed owing to them by the Sandovals. The indebtedness to Bosquez arose out of the poor financial condition of the Sando-vals. The members of the Sandoval family engaged in seasonal work picking cotton and performing other field labor. In some years they would go to West Texas for such purposes. Work was hard to get between seasons and the Sandovals had to buy groceries on credit from Bosquez. Such grocery bill and a note at the bank, which Bosquez co-signed for Mr. Sandoval, furnished the basis for the purported deed of February 14, 1950, which instrument the Sandovals contend was only a mortgage to secure the above-mentioned indebtedness. However, the instrument on its face was an absolute deed and operated to place the apparent record ownership of the Sando-vals’ homestead in Bosquez. Bosquez testified that the property was a vacant lot and that he did not know, even at the time of trial in 1963, that there was a house on it. However, the Sandovals knew there was a house on the lot here involved and they continued to live in it after the execution of the purported deed to Bosquez in 1950, just as they had since 1945. The Sandovals made substantial payments (one calculation at the trial showed such payments amounted to almost $400.00) on their account to Bosquez, after said purported deed was executed. Bosquez marked the receipts which he gave to the Sandovals to show that the payment was either on the house or on the note or account. Bosquez testified that his notation of payment on the house was an honest mistake because, according to him, there was no house on the property he acquired from the Sandovals. Bosquez testified, when the question was put directly to him, that the instrument executed by the Sandovals on February 14, 1950 was a deed, given to pay for groceries and for the cosigned note at the bank. However, his words to such effect were demolished by other testimony given by him, some of which has heretofore been referred to. Bosquez said he had not seen the Sando-vals’ property before the purported deed of February 14, 1950 but he had seen it shortly thereafter and had last observed it in about the years 1952 or 1954, i. e., some four to six years before he deeded it to Rattikin. Bosquez testimony contained significant admissions supporting the San-dovals’ position that the instrument of February 14, 1950 was, in truth, a mortgage and not a deed to him. One portion of his testimony on cross-examination is illustrative: “Q. All right, Is it your testimony— did I understand you right, Mr. Bosquez, that at the time of this transaction with the Sandovals there was no mention whatsoever of mortgage? A. No. Q. The word was not mentioned? A. No, sir. Q. You don’t recall anything about that? You didn’t tell the Sandoval’s “This is just a mortgage on your property and as soon as you pay me off, then I’ll release the mortgage ? ” A. No, sir. Q. You didn’t say anything like that? A. I told him, “If you ever want the lot back — ” —whenever he pays his debt, why I can just transfer the lot, and I waited eight years.” (S.F. pages 106-107, hearing on motion for new trial) Bosquez testified on at least two other occasions that he “closed the deed” from the Sandovals when he made the deal with Rattikin in 1958. His testimony was full of conflicts on matters concerning which he should have been able to give clear answers. Bosquez admitted that he received Five Hundred Dollars net for the 1958 deed to Rattikin, Trustee. This was in addition to the amount of almost Four Hundred Dollars which he received from the Sando-vals as payment of their old account, after the purported deed of February 14, 1950. Rattikin’s counsel called Bosquez as a witness on the motion for new trial hearing, and was bound by his testimony which was unfavorable to Rattikin in many respects. It is apparent that present counsel for the Sandovals presented evidence on the hearing of the motion for new trial that, at least, clearly and substantially raised a fact issue as to whether the purported deed of February 14, 1950, from the Sandovals to Bosquez, was, in truth, no more than a mortgage. There is authority, based upon facts no stronger than those present here, holding as a matter of law that a deed absolute on its face was actually a mortgage. See Ascension v. Saenz, 349 S.W.2d 266 (Tex.Civ.App., 1961, n. w. h., opinion by Pope, J.). Next, let us pass to a consideration of whether Rattikin had notice of the fact that the Sandovals still claimed to own their homestead property and that their deed to Bosquez, dated February 14, 1950 was, in fact, a mortgage, at the time he acquired a deed from Bosquez to said property on December 22, 1958. Rattikin’s involvement in this case arises from the fact that his agent issued a title policy in connection with a Mechanic’s Lien Note for $1,600.00, executed by the Sandovals in 1953 for improvements to their homestead property, located on the West one-half of Lot 16, in Block 1 of Loma Linda Addition to the City of Robstown, Nueces County, Texas, being the same property involved in this suit. Someone made a mistake in drafting the Mechanic’s Lien Note, and, instead of describing the Sandovals’ property, incorrectly used the description of the adjoining Lot 17. The said note was originally payable to P. M. Rushing, who assigned it to Corpus Investments, Inc. Payments were made by the Sandovals on said note until July 31, 1958. Rattikin’s brief, at page 14, refers to such transaction as follows: “According to OWENS’ letter, Plaintiff’s Exhibit 13, which was introduced by Appellants without reservation and who are bound thereby, the SANDO-VALS in 1953 put a Mechanic’s Lien on Lot 17, in Block One, of LOMA LINDA ADDITION for improvements. It was intended to describe the West one-half of Lot 16, in said Block One, as that is where the improvements are located. When the SANDOVALS became in default the lien was foreclosed. It was then discovered the improvements were situated on the West one-half of Lot 16 which was owned by Bosquez. The holder of the lien had called on the Title Company for protection and the Title Company took over the Note and then purchased the West one-half of Lot 16 from Bos-quez.” On the hearing of the Sandovals’ motion for new trial, counsel for Rattikin offered into evidence the original Mechanic’s Lien Note executed by the Sandovals and joined in offering a letter written by Rattikin’s attorney addressed to the Sandovals, dated July 9, 1959, before the filing of this suit. Such evidence established that Rattikin, through his agent, had become legally involved with the Sandovals when a policy of title insurance was issued in connection with the 1953 note for improvements on their homestead, made more than three and one-half years after the purported deed to Bosquez. It thus appears that Rattikin, before he got his deed from Bosquez on December 22, 1958, had knowledge and notice brought home to him, as it had been to the predecessor owners of the Mechanic’s Lien Note (which was assigned to Rattikin in connection with his discharge of the obligation on his title policy), that the Sando-vals had claimed to own their homestead property, on Lot 16, at least since 1953; that they had paid installments of principal and interest on said note as well as taxes and insurance for more than five years thereafter; and that the Sandovals were living on the said property at all material times when Rattikin suffered a loss under his title policy and when he attempted to recoup the same. When we consider the positions of Rat-tikin and Bosquez in 1958 at the time the transaction was consummated whereby Rat-tikin got the deed to the Sandovals’ homestead property, an interesting situation is presented. At that time Rattikin had knowledge or its equivalent of the facts just mentioned, and particularly that the Sandovals had made improvements on the said Lot 16 in 1953 and had made many payments on their note for same over a period of five years, as well as for taxes and insurance. Yet, according to the testimony of Bosquez, he thought that only a vacant lot was conveyed to him by the Sandovals and that he had only sold a vacant lot to Ratti-kin. Fortunately, we are not called upon to decide how much Bosquez, might have asked for a deed to said property (instead of the $500.00 he received) if he really believed he owned it and knew there had been a house on it since 1945 which had been improved to the extent of $1,600.00 in 1953, and that Rattikin was attempting to recoup a loss on a title policy because of the wrong description of the Sandovals’ property in the note to which we have previously referred. An endorsement for credits and other items on said Mechanic’s Lien Note shows a balance of $1,124.37 thereon as of July 31, 1958, apparently after the last payment made by the Sandovals. Additional endorsements on said note show that on December 23, 1958, the day after Bosquez’ deed to Rattikin, credits were made on said note for $1,085.49 principal, $78.71 interest, and $38.88 balance with a notation “Transfer Balance in reserves $38.88.” The underlying facts which were necessarily involved in the transaction whereby Rattikin was called upon to make good his undertaking on a title policy and the conduct engaged in by him or his agents was more than sufficient to raise fact issues as to his knowledge or notice of the continued ownership of the property by the Sandovals and that their purported deed to Bosquez executed February 14, 1950 .was no more than a mortgage. As an assignee of the note in question, Rattikin stood in the shoes of his predecessor owners of it, all of which involved notice to him prior to December 22, 1958 when the deed was acquired from Bosquez. Rattikin’s reliance here upon the case of Eylar v. Eylar, 60 Tex. 315 (1883), and cases following it such as Dorsey v. Temple, 103 S.W.2d 987 (Tex.Civ.App., 1937), is-misplaced. The rule that a purchaser is not bound to make inquiry beyond the recorded deed executed by one in possession purporting to convey the land to the person from whom the purchaser is acquiring it, applies only where there is an “absence of knowledge of any facts to the contrary.” See Williams v. Rabb, 161 S.W.2d 121 (Tex.Civ.App., 1942, wr. ref.), one of the cases relied upon by Rattikin in his brief herein. The crucial test as to knowledge or notice on the part of Rattikin is that which he had on December 22,1958, when Bosquez deeded the Sandovals’ homestead property to him. Baylor v. Ramos, 290 S.W.2d 273 (Tex.Civ.App., 1956, wr. ref., n. r. e., opinion by Pope, J.). We are here not presented with a case where the only knowledge or notice to Rattikin was that a deed to his prospective Grantor had been executed by the person in possession of the property involved, or that such deed was recorded. Nor are we dealing with a case which depends upon facts coming to a Grantee’s knowledge after he has received a deed. In this case the record abundantly shows that, at least, fact issues were presented as to- whether Rattikin had knowledge or was placed upon notice of the Sandovals’ claim to continued ownership of their homestead, prior to December 22, 1958, the date of the Bosquez’ deed to him, because of the very transaction and the material facts therein involved, whereby he suffered a loss on his title policy, as heretofore mentioned. See Vogel v. Zipp, 90 S.W.2d 668 (Tex.Civ.App., 1936, wr. dism.). The last cited case reiterates another rule of law which affects the question of Ratti-kin’s knowledge or notice. At 90 S.W.2d 671, the court said: “It is settled law that, when the consideration for a deed or for a deed of trust lien is a preexisting debt, it will not support the claim of a bona fide purchaser for value without notice, as against the claim that the property so conveyed is the homestead. Steffian v. [Milmo Nat.] Bank, 69 Tex. 513, 6 S.W. 823; Swann v. Rotan State Bank, 115 Tex. 425, 282 S.W. 789; Walter Connally & Co. v. Gaston (Tex.Civ.App.) 295 S.W. 953.” The record in this case clearly discloses that, at all material times herein, the conduct of Rattikin was engaged in solely for the purpose of collecting the pre-existing debt of the Sandovals, evidenced.by their Mechanic’s Lien Note. Rattikin caused the deed from Bosquez to be executed to him for such purpose. By his attorney’s letter of July 9, 1959, he offered to sell the Sando-vals their homestead property for $2,044.32, and when such offer was not accepted, this suit was filed on February 12, 1960. In my view, such facts, along with others heretofore mentioned, prevent Rattikin from being a bona fide purchaser for value without notice. On the basis of the evidence offered on the hearing of the motion for new trial, it is my opinion that, at least, fact issues were shown to exist as to whether the deed from the Sandovals to Bosquez, dated February 14, 1950, was a mortgage, and that Rattikin had notice, or its equivalent, of such fact. A strong argument can be made that, on the evidence presented at the hearing on the motion for new trial, such issues were established as a matter of law in favor of the Sandovals, and, in any event, that opposite findings would be contrary to the great weight and preponderance of the evidence so as to be manifestly wrong and unjust. See Ascension v. Saenz, 349 S.W.2d 266 (Tex.Civ.App., 1961, n. w. h.). The Sandovals, through their present counsel, clearly demonstrated to the trial court on the motion for new trial that they had a defense to Rattikin’s case which could have defeated it if only they had been accorded the effective assistance of counsel on the original trial of the case. Nevertheless, the lower court denied the Sandovals a new trial. It does not clearly appear from the record herein that the trial judge should have realized on the original trial of this case that the Sandovals were not being effectively represented, although there were strong danger signals in that direction, particularly because the legal-aid attorney, at the outset, announced that the Sandovals would offer evidence to support their position that the deed to Bosquez was a mortgage; and, within a few minutes thereafter, it appeared there was a total failure to make good on such offer. However, on the hearing of the motion for new trial the issue was squarely presented and the trial judge was charged with the important duty of determining on basis of the allegations and showing then made whether the Sandovals had been deprived of effective representation of counsel on the original trial of the case, and had been prevented from making their defense for such reason. I am firmly convinced that the lower court erred in not granting the Sandovals a new trial, or perhaps more accurately, a trial, because the purported representation of them by the legal-aid attorney amounted to no representation and certainly did not meet any minimum standard of effective assistance of counsel. I believe that this premise is amply supported by decisions of our courts, both state and federal, including a number of cases decided in recent years. The basic obligation of an attorney to render effective assistance of counsel to his client in the protection of life, liberty or property, and the right of the client to receive such effective assistance is a long established concept. In the case of Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948), the opinion of Justice Black includes the following statement: “Undivided allegiance and faithful, devoted service to a client are prized traditions of the American lawyer.” A footnote reference to such statement in the opinion sets out Canons 15 and 4 of the Americal Bar Association Canons of Professional and Judicial Ethics, as follows : “Canon 15. The laywer owes 'entire devotion to the interest of the client, warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability,’ to the end that nothing be taken or be withheld from him, save by the rules of law, legally applied. No fear of judicial disfavor or public unpopularity should restrain him from the full discharge of his duty. In the judicial forum the client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land, and he may expect his lawyer to assert every such remedy or defense.” (Emphasis supplied). “Canon 4. A lawyer assigned as counsel for an indigent prisoner ought not to ask to be excused for any trivial reason, and should always exert his best efforts in his behalf.” The Canons of Ethics which govern members of the State Bar of Texas contain several provisions relating to the subject of effective assistance of counsel. Canon 6 refers to “The obligation to represent the client with undivided fidelity.” Canon 7 provides, in part, that “ * * * it is the right of any member, without fear or favor, to give proper advice to those seeking relief against unfaithful or neglectful counsel * * Canon 8 provides, in part, that “A member should endeavor to obtain full knowledge of his client’s cause before advising thereon * * Canon 19 provides, in part, that “The conduct of a member before the court and with other members should be characterized by candor and fairness.” Canon 21 provides, in part, that “A member should not do anything repugnant to his own sense of honor and propriety.” Canon 40 provides that an attorney may withdraw from employment under certain conditions, including “even if a member finds himself incapable of conducting- the case effectively.” (Such Canons are found following Art. 320a-l V.A.T.S.) There are several Texas decisions involving the right to effective assistance of counsel in both civil and criminal cases, the necessity of judicial sensitivity to the protection of constitutional rights, and the relationship of such matters to constitutional due process. See Lopez v. Calzado, 281 S.W. 324 (Tex.Civ.App., 1926, wr. dism.) ; Madero v. Calzado, 281 S.W. 328, second case. (Tex.Civ.App., 1926, wr. dism.); Rodriquez v. State, 170 Tex.Cr.R. 295, 340 S.W.2d 61 (1960) ; Ex parte Caldwell, Tex.Cr.App., 383 S.W.2d 587 (1964); Ex parte Davis, 161 Tex. 561, 344 S.W.2d 153 (1961). In Lopez v. Calzado, 281 S.W. 324, the Court of Civil Appeals at San Antonio reversed a judgment in favor of the plaintiff and remanded the case for new trial because of the lack of effective assistance rendered by appointed counsel who represented defendants cited by publication, and because such ineffective assistance resulted in denying the defendants their day in court. In discussing the respects in which appointed counsel failed to discharge his obligation to his clients, Chief Justice Fly, speaking for the court, pointed out that the appointment of counsel was so that the defendant “may have any and all defenses presented to which he would be entitled if personally present.” The court pointed out, further, that the filing of an answer consisting only of a general demurrer (then permitted) and a general denial did not satisfy the duty of counsel to. his clients, and, that special exceptions testing the plaintiff’s pleadings, should also have been filed and a hearing held before the court on them. The court also said that when the appointed attorney failed to discharge his obligation, there was a duty on the trial judge to intervene and direct presentation of defenses to which the defendants might be entitled and in connection with “having proper testimony presented and improper excluded.” In such a case, the court said, the defendants’ rights “can only be guarded by the court, and the attorney appointed by the court.” The Court of Civil Appeals further pointed out that proper objections were not made to testimony involving transactions with decedents and to opinions as to the laws of Mexico about which the witness was not shown to be qualified, and that pleas of limitation, which would have presented good defenses, were not filed by the appointed attorney. In concluding the opinion, the court, at 281 S.W. 326, said: “The plaintiffs in error have not had their constitutional day in court, nor had their rights protected as the law intended, and the judgment will be reversed and the cause remanded.” In a companion case to Lopez v. Calzado, supra, the Court of Civil Appeals at San Antonio handed down its opinion in Madero v. Calzado, 281 S.W. 328 (being the second case on page 328 with the same style), the opinion being written therein by Associate Justice Edward W. Smith. The facts in the two cases were similar, but the defendants were different. Counsel was appointed in both cases to represent the defendants cited by publication. Justice Smith, speaking for the Court in Madero v. Calzado, discussed the respects in which appointed counsel failed to render effective assistance to his clients in that case, similar, in many respects, to the situation in Lopez v. Cal-zado, and emphasized the duty of the trial judge to intervene when the lack of effective assistance of counsel became apparent. In Madero v. Calzado the court concluded that a judgment obtained under the procedures there disclosed “ought not to be permitted to stand, but should be set aside, and a new trial granted in order to give the defendants an opportunity to have their rights adjudicated in accordance with established rules of practice and procedure.” At page 330 of the opinion, the court said: “The duty of an attorney appointed in such cases is not merely perfunctory in its nature, notwithstanding the probable fact that it has grown to be a custom to thus lightly treat that office. For it is the duty of such attorney to defend the rights of his involuntary client with the same vigor and astuteness he would employ in the defense of clients who had expressly employed him for such purpose. In suits of this character, nothing can be admitted against the interest of the absent defendant, and the one chosen to represent that interest in a case stands in court to insist that no pleading shall go unchallenged, no step shall be taken, no act done, no evidence produced, which shall in' any manner be legitimately the subject of an objection or exception.” “Such being the spirit and intent of the statute, and it being the duty of the trial court under that statute to appoint the attorney to represent the absent defendants, we conclude by the same token that when the appointed attorney hesitates or fails to perform his duty in the manner contemplated by the statute, it becomes the further duty of the trial judge to take the initiative and interpose his own authority to enforce orderly and legal procedure, and protect the absent parties from gross infractions of the rules of pleading or evidence.” The cases of Lopez v. Calzado, supra, and Madero v. Calzado, supra, by the San Antonio Court of Civil Appeals, are, indeed, land-mark decisions on the proposition that helpless defendants who must rely upon appointed attorneys in civil cases are entitled to the effective assistance of counsel and to be protected by such counsel and the trial court in seeing to it that they will not be deprived of their constitutional day in court. In Rodriguez v. State, 170 Tex.Cr.R. 295, 340 S.W.2d 61 (1960), the Court of Criminal Appeals reversed a conviction because of the lack of effective assistance of appointed counsel who made a number of serious mistakes during the course of the trial. At page 63 of the opinion, the court said: “Courts are slow to express an opinion as to whether a licensed member of the bar, authorized to practice law in the state, is competent to do so or has adequately represented and protected the rights of a client, but when it appears from the entire record that accused has not been adequately represented, courts should not hesitate to say so.” In Ex parte Caldwell, Tex.Cr.App., 383 S.W.2d 587 (1964), the court granted habeas corpus setting aside a death penalty conviction because inexperienced appointed counsel in the trial court failed to give notice of appeal and the Court of Criminal Appeals did not acquire jurisdiction for regular review. The court set aside the conviction on that ground that “ * * * the rights of an indigent accused were not properly safeguarded * * The four Texas cases just discussed (Lopez, Madero, Caldwell and Rodriguez) clearly demonstrate that in a proper case, a defendant, either in a civil or criminal proceeding, will be granted relief and a new trial where he has suffered injustices due to the lack of effective assistance of counsel. In Ex parte Davis, 161 Tex. 561, 344 S.W.2d 153 (1961), the Supreme Court of Texas held that constitutional due process was denied the relator under the Fourteenth Amendment to the Constitution of the United States, as well as under other federal and state constitutional provisions, because, in the trial court (where Davis was a defendant in a contempt case involving failure to make child support payments, a quasi-criminal proceeding) he was not afforded sufficient notice of the hearing, was not advised that he was entitled to further time in which to obtain counsel and prepare for trial. Davis’ failure to protest was held not to be a waiver of his rights or a consent to trial. The court cited Ex parte Hejda, 118 Tex. 218, 13 S.W.2d 57, wherein it was held that relator there was denied constutitional due process, and quoted from the opinion, in part, as follows: “ ‘ “Due process of law” ordinarily includes: (a) Hearing before condemnation; (b) accordance of reasonable opportunity to prepare for the hearing. Mandate of reasonableness of opportunity may not be attenuated to mere formal observance by judicial action, * * * > )> In Ex parte Davis it appeared that the relator was a deaf mute who had received only two days notice of the contempt hearing at which he was ordered punished and confined in jail until he paid delinquent child support payments as well as a fine and costs. At page 157 of 344 S.W.2d the court said: “The facts which are important here are the brevity of notice, the physical handicap of relator and resulting difficulty of communication and understanding, the absence of counsel at the hearing, the failure to advise relator of his right under the statute and rule to additional time in which to obtain counsel and prepare for trial, and the failure to permit the introduction of further evidence when tendered by counsel who was promptly employed. A longer period for preparation, the presence of counsel, and the receipt of additional evidence might not have led to a different judgment, but due process required that a reasonable opportunity for exerting those influences on the court’s judgment be afforded. Ex parte Ratliff, 117 Tex. 325, 3 S.W.2d 406, 57 A.L.R. 541; Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767.” In Ex parte Davis, it appeared that the combination of factors mentioned by the Supreme Court called into action the judicial guidance of the trial judge, but such was not given. It, therefore, was established that Davis was not given a fair trial — the kind of a hearing guaranteed by constitutional due process — and the court refused to allow the results of such a hearing to stand. Any serious consideration of the meaning and necessity of effective assistance of counsel must necessarily include the decisions of the Supreme Court of the United States in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158. Gideon v. Wainwright, supra, recognizes the right of an indigent defendant to counsel in a state criminal case where his life or liberty is involved and reiterates the rule as to the right of effective assistance of counsel previously announced by that court in Powell v. State of Alabama, supra. At 372 U.S. 344-345, 83 S.Ct. 796, 797, opinion in Gideon, the court said: “From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with a crime has to face his accusers without a lawyer to assist him. A defendant’s need for a lawyer is nowhere better stated than in the moving words of Mr. Justice Sutherland in Powell v. [State of] Alabama: ‘The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and the knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.’ 287 U.S., at 68-69, 53 S.Ct., at 64, 77 L.Ed. 158.” Immediately following the above-quoted portion of the opinion in Powell v. State of Alabama, at 287 U.S. 69, 53 S.Ct. 55, 64, the court also said: “If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, of those of. feeble intellect.” In my view, the language of the Supreme Court of the United States in Gideon v. Wainwright, supra, and the quotations from Powell v. State of Alabama, supra, herein-above set out, need only be paraphrased in minor respects to be properly applicable to the necessity for the effective assistance of counsel in civil cases where property rights are involved. Recent decisions of the United States Court of Appeals for the Fifth Circuit have shed much light on the meaning of effective assistance of counsel in criminal cases. See MacKenna v. Ellis, 280 F.2d 592 (5th Cir.1960), modified on en banc hearing, 289 F.2d 928 (1961); Porter v. United States, 298 F.2d 461 (5th Cir.1962) ; Randazzo v. United States, 339 F.2d 79 (5th Cir.1964); Pineda v. Bailey, Sheriff of El Paso County, Texas, and Dr. George Beto, Director of the Texas Department of Corrections, 340 F.2d 162 (5th Cir. Jan. 12, 1965). In each of said cases the accused was granted relief on account of lack of effective representation of counsel. The substance of pertinent holdings in the above-cited Fifth Circuit cases will be briefly reviewed. In MacKenna v. Ellis, supra, the court held that the right to counsel means “the right to effective counsel”; that undivided loyalty of appointed counsel to client is “essential to due process”; that a defendant have a fair opportunity to tell his story in a fair trial is “basic to due process”; that a defendant is entitled to “the effective, whole-hearted assistance * * * and to the undivided loyalty of counsel”; that a defendant “is entitled to have his trial guided by a judge sensitive to the duty of protecting the accused’s constitutional rights in all cases.” In the case of Porter v. United States, supra, the court held, in substance, that “effective representation” is required for a defendant “whether the attorney is one of his own choosing or court-appointed”; that effective representation is lacking where counsel “unknown to the accused and without his knowledgeable assent, is in a duplicitous position where his full talents — as a vigorous advocate * * * are hobbled or fettered or restrained by commitments to others”; that a court may not countenance such ineffective representation, when it appears, and must take “effective action” because, in such circumstances “the trial is not the fair one demanded by the Constitution.” In the case of Randazzo v. United States, supra, the court reiterated the holdings and doctrine of Porter v. United States, supra, and held that an attorney who attempted to represent Ran-dazzo on appeal from a sentence for criminal contempt could not do so because (as was suggested by the United States, appel-lee) a conflict of interest existed which would deprive the appellant “of effective counsel in this appeal” since he was not “unhobbled or unfettered or unrestrained by his commitments to another.” A significant holding in Randazzo is that not only is there a duty on the trial court to protect the right to assistance of counsel but “We think this admonition applies equally to appellate courts.” In Pineda v. Bailey & Beto, supra, the most recent decision of the United States Court of Appeals for the Fifth Circuit involving the question of effective assistance of counsel, the court reversed the judgment of a United States District Court denying a writ of habeas corpus from Pineda’s final conviction in a Texas court, for which he was sentenced to a maximum of 43 years in the state penitentiary, and the case was remanded to said district court for further proceedings not inconsistent with the opinion. The Court of Appeals held in part as follows: “As this Court has recently written, more than a formal appointment of counsel is required. There must be effective assistance of counsel. (Footnote 3, appearing at this point, cites the cases of Powell v. State of Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Lyles v. Beto, 329 F.2d 332 (5th Cir. 1964); Porter v. United States, 298 F.2d 461 (5th Cir.1962). Effective assistance does not mean that a defendant is entitled to have the best counsel appointed, or any particular counsel, but it does mean that he must have such assistance as will assure him due process of law. As we said in MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir. 1960), “We interpret the right to counsel as the right to effective counsel. We interpret counsel to mean not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance”. (Emphasis is in the published opinion; it is not supplied here). “A review of the record in this case convinces us that it cannot be said that Appellant’s counsel met that standard. The record fails to show that Mr. Bean brought to the defense of Appellant the zeal which the law requires for his defense. His conduct is more consistent with an attempt to go through the formalities of a trial than it is with an interested counsel’s best efforts to develop and present his client’s case. He spent approximately ten minutes with Appellant prior to his trial to prepare his defense for a charge of murder with malice. His conduct prior to, during, and after trial hardly shows effective assistance of counsel.” “We need look no further than Powell v. State of Alab