94 Ark. 301 | Ark. | 1910
(after stating the facts). “A vendor of land, who has parted with the legal title, has, in equity, a lien on the land for the unpaid purchase money, as against the vendee and his privies, including subsequent purchasers with notice.” Stephens v. Shannon, 43 Ark. 464; Osceola Land Co. v. Chicago Mill & Lbr. Co., 84 Ark. 1.
The undisputed evidence in this case shows that the plaintiff was the owner of the land when she conveyed it to Farris, and that the purchase price is due, and has not been paid. The evidence on the part of plaintiff shows that the defendant Wilson knew these facts at the time -he made the loan to his co-defendant, Farris, and took the mortgage from him on the lands in controversy to secure the same. -Indeed, Wilson does not deny this, but testified to a state of facts which tends to show that he thought the title to said lands was in T. M. Shocklee, instead of his wife, Mrs. Fannie M. Shocklee, and that T. M. Shocklee had agreed to waive his lien in equity for the unpaid purchase money. Under this state of facts, if the title to the land had been in T. M. Shocklee, he would be estopped from setting up his vendor’s lien for the unpaid purchase money as against the defendant Wilson. Scott v. Orbison, 21 Ark. 202.
The most serious question in the case is, can, under the facts and circumstances as shown by the record, the doctrine of estoppel be invoked against the plaintiff, Mrs. Fannie M. Shocklee ?
In the case of McCombs v. Wall, 66 Ark. 336, the court held: “By virtue of his general authority as such, a husband has no authority to bind his wife by an agreement as to her land.” In the case of Latham v. First National Bank of Fort Smith, 92 Ark. 315, in discussing the acts and declarations of the husband in regard to his wife’s property, the. court said: “A principal is not bound- by the acts and declarations of an agent beyond the scope of his authority. A person dealing with an agent is bound to ascertain the nature and extent of his authority. No one has the right to trust to- the mere presumption of authority, nor to the mere assumption of authority by the agent. City Electric St. Ry. Co. v. First Nat. Exch. Bank, 62 Ark. 33, 40. These well settled principles must determine this controversy in favor of appellant. The declarations of Latham, the agent of appellant, that he owned the lease contract, and that appellee could have the same as security, were wholly incompetent as against appellee to establish the authority of Latham to use the rents belonging to Mrs. Latham for the purposes stated, or to show that he owned the lease.”
In the present case there is no testimony tending to show that Mrs. Shocldee permitted her' husband to use her separate estate, or to represent that the land in controversy would be conveyed to Farris for the purpose of enabling him to execute a mortgage on it to the defendant, Wilson, to secure the loan made by Wilson to Farris, or to show that she knew her husband had made such representations.'
Applying the rules announced above, it is plain that the representations made by T. M. Shocldee to Wilson can not be used as evidence against Mrs. Shocklee. The recitals in the deed of Mrs. Shocklee to Farris that the purchase price was paid can not avail the defendant, Wilson, in the face of the proof that he was told that the purchase money was not paid before he made the loan to Farris.
• We find no error in the record, and the decree will be affirmed.