107 Ark. 314 | Ark. | 1913
(after stating the facts). It is insisted for ■appellee that she was a minor and in the actual possession of the lands at the time of the execution of the deed of trust thereon to secure the payment of the loan to A. Rubel, and that he could not be an innocent purchaser thereof, since the law requires him to take notice of her equities therein.
It is not disputed that her father purchased the lands and went into possession thereof under bond for title from Bell; that he died in such possession, leaving appellee surviving him, still occupying the lands; neither is it disputed that John J. Parker, her uncle, immediately thereafter with his family took possession of the premises, and that the infant, appellee, continued to live in the house with him and that Parker procured the conveyance of the lands from Ed. Bell to himself by warranty deed, upon the payment of the balance of the purchase money under the contract of sale made to appellee’s father, Joseph Parker. This deed was placed of record and thereafter appellant made the loan to John Parker, taking as security therefor the deed of trust upon the lands. There was no testimony indicating that he had any knowledge or information whatever, that appellee had any equity in the land conveyed in the deed of trust. Under such circumstances, does the law make him take notice of her rights and equities ?
In American Building & Loan Association v. Warren, 101 Ark. 169, this court said:
“Ordinarily, possession by a person under a contract of purchase, although unrecorded, is notice of his equitable rights and interests in the property. Actual possession is evidence of some title in the possessor, and puts the subsequent purchaser or mortgagee on notice, as to the title which the occupant holds or claims in the property.
“Generally actual, visible, exclusive possession is notice to the world of the title and interest of the possessor in the property and it is incumbent upon the subse'quent purchaser or mortgagee to make diligent inquiry to learn the nature of the interest and claim of such possessor, and if he does not do so, notice thereof will be imputed to him. Hamilton v. Fowlkes, 16 Ark. 340; Shinn v. Taylor, 28 Ark. 523; Rockafellow v. Oliver, 41 Ark. 169; Atkinson v. Ward, 47 Ark. 537; Strauss v. White, 66 Ark. 167; Talheimer v. Lockhert, 76 Ark. 26; Sproull v. Miles, 82 Ark. 455; Hugh Bros. v. Redus, 90 Ark. 149; 1 Jones on Mortgages (6 ed.), § 589.”
It is true appellee lived in the house with her uncle, John J. Parker, at the time of the execution of this deed of trust and that she had succeeded to the rights of her father, who died in possession of the premises under the title bond executed by Ed. Bell, but such occupancy can not be regarded as possession, which, under the law, would require the purchaser or mortgagee to take notice of any equities she might have in the land. 39 Cyc. 1766cc;L endley v. Martindale, 78 Iowa 379, 43 N. W. 233; Rankin v. Coar, 46 N. J. Eq. 566; 22 Atl. 177; 11 L. R. A. 661. She was but a small girl, living in the house with her uncle and his family, who was in the actual, open, visible possession of the lands, claiming to be the owner thereof under a deed of conveyance of record, showing him to be. such owner. It can not be said that she was in the actual visible and exclusive possession of such premises under a claim of right which compels the purchaser or mortgagee to take notice of the equities or claims of the person in possession. If appellant had even been upon the premises and seen the family of John Parker, it would not have occurred to him as a prudent person to inquire if the infant girl was his own or the child of his brother living with the family, and certainly it could not have occurred to him that she was in the possession of the premises under the circumstances.
Appellee was an infant and was imposed upon and defrauded by her uncle, who fraudulently acquired the deed conveying the title to the lands which should have passed to her upon payment of the remainder of the purchase money, but appellant occupies the position of an innocent purchaser in the transaction, for value, and without notice of any equitable claims or rights of appellee, affecting the title to the lands and is equally entitled to the protection of a court, of equity, and “where the equities are equal the law will prevail.” It has been said, “No one can occupy in a court of equity higher ground than the purchaser for value, without notice, for if he can maintain that position his title is established and his position impregnable.” 23 A. & E. Enc. of Law, pp. 475-6; Sorrell v. Sorrell, 4 Ark. 301.
Appellee was entitled to the lands as against the heirs of John Parker, but could have been charged with the balance due upon the lands paid by him which was more than extinguished by the personal property of appellee’s'father converted to his own use and as between them would have the right to the lands free of any lien for the payment of the balance of the purchase money.
As against the cestui qui trust, A. Bubel, who occupies the position of an innocent purchaser, for value without notice, she is entitled to the lands after payment of the amount due him under the mortgage, -with interest. The testimony shows, however, that he collected in different- amounts from John Parker after he learned of the rights and equities of appellee in the land, $50, which was for rent of this land, $75, in all, which he applied upon another indebtedness of John Parker, due him secured by mortgage on personalty. Under these circumstances, we think equity requires3 that he shall be charged with such sums in the settlement of his debt against the land, and is entitled to recover only the difference between the said sum of $75 and the amount of the $200 loan, and interest, secured by the trust deed. Upon the payment of this amount the deed of trust should be cancelled, and the title to the property vested in appellee. The conveyance to John Parker should not be cancelled, but he should be declared a trustee, holding the title thereto for her benefit, and the decree will vest the whole legal title in appellee subject only to the payment of the balance due on the indebtedness secured bv the deed of trust as indicated herein. The judgment is reversed and the cause remanded with directions to enter a decree in accordance with this opinion.
