166 Ark. 285 | Ark. | 1924
(after stating the facts). A vendor of land who has parted with the legal title has in equity a lien cm the land for the unpaid purchase money,- as against his vendee and subsequent purchasers with notice; and a subsequent purchaser will be affected with notice of all recitals in the title deeds of his vendor, whether recorded or not. If anything appears in such deeds sufficient to put a prudent man on inquiry, which, if prosecuted with ordinary diligence, would lead to actual notice of some right or title in conflict with that he is about to purchase, it is his duty to make the inquiry, and, if he does not make it, he is guilty of bad faith, or negligence, and the law will charge him with the actual notice he would have received if he had made it. Notice that part of the purchase money remains unpaid is sufficient notice. Gaines v. Summers, 50 Ark. 322; Graysonia-Nashville Lbr. Co. v. Saline Development Co., 118 Ark. 192; and Madden v. Suddarth, 144 Ark. 79.
Our statement of facts shows that A. N. Simmons conveyed this land by a warranty deed to J. S. Thomas on the 17th day of October, 1917.. The deed recites a consideration of $6,666.66, “in hand paid and to be paid by J. W. Thomas.”
On the 3rd day of December, 1918, J. W. Thomas and wife executed a warranty deed to said lands to L. D. Williams. The deed recites a consideration of $8,000, “one-third of which is paid in cash, and the remainder secured by a deed of trust on land, to us in hand paid by L. D. Williams, and the assumption of the sum of $3,333.33, same being two-thirds of a mortgage, the balance due on which is $5,000 in favor of A. N. Simmons.” The mortgage of L. D. Williams and wife to the Maxwell Investment Company, which was transferred to. the Union & Planters’ Bank & Trust. Company, was not executed until the 1st day of November, 1920;
The deeds from A. N. Simmons and wife to J. ¡W. Thomas and from J. W. Thomas and wife to L. D. Williams were both in the line of title of the Maxwell Investment Company, and that company transferred its mortgage from L. I). Williams to the Union & Planters’ Bank & Trust Company: The mortgagee and its assignee were subsequent purchasers and affected with notice of all recitals in the title deeds of their vendors.
L. D. Williams, when he purchased the land in controversy from J. W. Thomas, knew that the latter still owed A. N. Simmons a balance for the land, and gave Thomas his obligation for the amount. The deed recites that Williams assumed the sum of $3,333.33 which Thomas owed Simmons. The amount'Williams assumed to pay was a part of the consideration of his purchase, and was at the time a lien on the lands.
The Maxwell Investment Company could have ascertained this fact from inquiries suggested by the' recitation of the consideration in the deed from Thomas to Williams and by the deed from Simmons to Thomas. It will be remembered that the latter deed contains the recitation that it is for a consideration of $6,666.66, paid and to be paid by J. W. Thomas. An inquiry of Thomas or of Simmons would have revealed the fact that there was a balance of the purchase money due Simmons.
It is true that the abstract of title furnished the Maxwell Investment Company recited that the consideration to Simmons had been paid; but this recitation in the abstract of title necessarily could not control. If the Maxwell Investment Company was affected "with notice of all recitals in the title deeds of its vendor, it could not ignore these recitals and rely upon a recital in the abstract of title. In other words, a mistake in the abstract of title would not relieve it from making inquiries suggested by the deed in the line of its title. Neither would the fact that Williams made the statement that there were no liens on the land when he made his application for a loan relieve it from (mailing' the inquiries suggested, in the deeds just referred to. Any inquiry made by the Maxwell Investment Company to Thomas or Simmons would have disclosed the fact, that there was a balance of purchase money due Simmons, and that Williams had expressly agreed with Thomas to assume a part of this, and that the amount he assumed to pay was a part of the consideration of his purchase from Thomas. •
It follows that the decree must be affirmed.