| Ark. | Mar 7, 1910
(after stating the facts). Appellant has the record title to the land in' controversy. Appellee has an unrecorded deed to the land from the same source. The first question is, did appellant have notice at the time he purchased of appellee’s' title?
We are of the opinion that the clear preponderance of the evidence shows that he did not have such notice. The testimony of appellant is positive that at the time he purchased the lot from Isaacs Scott Congress, appellee’s immediate vendor, had abandoned it. He said that at the date of his purchase, in a conversation with Congress, the latter “told me he had nothing to do with it,” that “he had turned the property over to Mr. Isaacs,” that “he had left it, had not pafd for it, and had nothing to do with -it.” Again he says that at the time he made the contract with Isaacs he thought “Scott Congress had just moved off of it,” and again, “from the time I took the contract from Mr. Isaacs not a- soul ever touched it but me.” Now, even if Scott Congress was on the lot at the time appellant made his contract of purchase, December 26, 1900, that fact could only have the effect to put appellant upon inquiry as to Congress’ rights. The fact is undisputed that he did make inquiry of Congress, and that Congress told him that he had given up the place. Furthermore, even if Congress was on the place when appellant contracted to buy the lot in 1900, the undisputed evidence is that at the time appellant procured his deed from Mr. Isaacs, in 1907, Congress had been away from the place at least five years, and, although living in a short distance from it, he had wholly abandoned it. These facts are established by Congress himself. “It seems to be a necessary conclusion from the unvarying line of decisions,” says Mr. Pomeroy, “that, as against a subsequent grantee whose deed has been duly recorded, no mere constructive possession of' a prior or even rightful claimant, consisting only of an original act of taking actual possession, followed by a leaving of the premises entirely vacant and unoccupied, can amount to the constructive notice from possession, as recognized by the American law,” 2 Pom. Fq. Jur. § 621.
• We are of the opinion that, even if Congress did occupy the premises at the time Allen made his contract to buy, the undisputed evidence warranted him in concluding, at the time the sale was consummated by payment of the last purchase money note and the execution of the deed to him, that Congress had abandoned the lot, “had given it up,” and had no further interest therein. The undisputed evidence, in other words, shows that appellant did not have any actual notice of Congress’ title. The deed of Isaacs to Congress being unrecorded, appellant, had no constructive notice. Therefore, as between Congress and appellant, the latter’s title is perfect.
Appellee, according to his own and the undisputed evidence, purchased from Congress after the institution of this suit by appellant, and of course with full notice of appellant’s claim and rights. He is not an innocent purchaser. He stands in the shoes of Congress, and, as Congress under the evidence would have no right against appellant, neither has appellee.
The appellee contends that the evidence shows that Mrs. Isaacs never intended to convey the lot in controversy to appellant, and that the lot was included in his deed through mistake or fraud. But appellee acquired his title through Congress, and has no other or greater rights than Congress would have. Congress would be estopped from claiming as against appellant; so is appellee estopped. Mrs. Isaacs is not complaining of any mistake. Appellee is in no position to complain.
The judgment is therefore reversed with directions to enter a decree quieting the title of appellant to the lot in controversy.