Richards v. Billingslea

Hart, J., (after stating the facts). The record shows that J. H. G-reer obtained a tax title to the land described in the complaint and paid the taxes for certain years under it. Subsequently the tax deed to him was declared void, and the trustee of the estate obtained judgment against O. M. Richards, who was then the owner of the land, for the taxes so paid by him. O. M. Richards brought suit against H. L. Billingslea and wife and Mary E. Billingslea on the theory that the covenant of H. Li Billingslea that the land was free from all incumbrances had been broken, and that he was entitled to maintain his action thereon under the principles decided in Seldon v. Dudley E. Jones Co., 89 Ark. 234, and other cases of like character. Counsel for Mrs. Mary E. Billingslea earnestly insists that she was not a party to the deed which contained the covenant against incumbrances, and that she could only be held to comply with the terms of her original contract. In this contention we think counsel is correct. On the 19th day of September, 1913, Mary E. Billingslea and O. M. Richards entered into a written contract whereby she agreed to sell and convey the land to him as soon as she could “get legal proceedings through the courts to transfer the land legally. ” Again, the contract recites that Mrs. Mary E. Billingslea agrees with said Richards that, in the event she is for any reason denied by the court permission to sell the above land, she will rent the land to Richards. These recitals show that O. M. Richards had notice of the state of the title of Mrs. Mary E. Billingslea. This court has held that whatever puts a party on inauiry amounts to notice where the inquiry becomes a duty and would lead to knowledge of the requisite facts by- the exercise of ordinary diligence and understanding. Jordan v. Bank of Morrilton, 168 Ark. 117, and WalkerLuoas-Hudson Oil Co. v. Hudson, 168 Ark. 1098. That the matters recited in the original contract would lead to knowledge is clearly shown by the amended complaint of O. M. Richards. In it he sets up that he is informed and believes -certain facts which show complete knowledge on his part of the state of the title. In his amended complaint he also sets up that the land originally belonged to E. L. Billingslea, Sr., and that Mary E. Billingslea was his widow and the mother of the minor defendants named in the amended complaint. Tie alleges that the land belonged to these minors, and was sold in the probate court and purchased by H. L. Billingslea, an uncle of said minors, for the purpose of perfecting the title and to enable Mary E. Billingslea, as guardian of said minors, to make a quick sale, if a purchaser appeared'and desired to -complete the purchase at once. Thus it will be seen that, under the terms of the original contract, O. M. Richards was to take whatever title he could secure by the proceedings in the probate court through which Mary E. Billingslea was to obtain leave to sell said land. It also appears from the allegations of the amended complaint that H. L. Billingslea was insolvent at the time, and that he was used merely as a means of conveying whatever title could be obtained through the proceedings in the probate court, and the terms of the original contract showed that O. M. Richards was to obtain only such title -as could be conveyed to him through the probate court proceedings. Mrs. Mary E. Billingslea carried out in good faith her part of the original contract, and she is in no wise bound by the covenant against incumbrances in the deed executed by H. L. Billingslea to O. M. Richards. In this connection it may be stated that it is true that O. M. Richards testified that, at the time the deed from H. L. Billingslea to himself was delivered, Mrs. Mary E. Billingslea told him that it was a warranty deed, and that he had a good title. Parol evidence could not serve, however, to vary or contradict the terms of the original written contract, and, as we have already seen, O. M. Richards obtained all the title that the terms of the original co’ntract gave him. With regard to H. L. Billingslea but little need be said. Under the allegations of the amended complaint, and under the undisputed evidence, he was used merely as a means to enable Mrs. Mary E. Billingslea, the guardian of the minors, to make a quick sale of the land. The beneficial interest in the land was in the minors, and this fact was known to O. M. Richards.' H. L. Billings-lea was merely used as a means of conveying the interest of the minors to Richards. O. M. Richards, having-obtained the deed from H. L. Billingslea with full knowledge of the facts, is in no position to recover from him back taxes on the land as a breach of his covenant against incumbrances. It follows that the decree will be affirmed.