Abbott v. Parker

Hart, J., (after stating the facts). It is first contended by counsel for the defendant that the court erred in refusing to instruct the jury that the letter from F. E. Wright to the Grayson-McLeod Lumber Company should be considered as explaining and qualifying the deed of the lumber company to Wright, but we'do not think so. The language of the deed is plain, certain and unambiguous, and in such cases the court will not consider the surrounding facts or circumstances. The construction of a deed or contract, free from ambiguity, is a question of law. Dugan v. Kelly, 75 Ark. 55. 2. It is next contended by counsel for defendant that the court erred in giving the following instruction to the jury: “Gentlemen of the jury, under the evidence and pleadings in this case, you will find for plaintiff, unless you find from a preponderance of the evidence that the plaintiff, by his conduct, has authorized the defendant to go ahead and tear down the house, and as contended by defendants.” In this contention we think he is correct. It is first insisted by counsel for plaintiff that the defendant Abbott had constructive notice of his claim to the land under section 762 of Kirby’s Digest. He contends that plaintiff brought himself within its provisions by recording the deed from Wright to himself on March 30, 1908, which was prior to the time that the defendant claims to have purchased the ice house. It will be noted that the deed from the GraysonMcLeod Lumber Company to Wright was not filed for record until July 29, 1911, which was subsequent to the purchase of the house by the plaintiff. The deed of the lumber company to Wright, not being of record at the time Abbott purchased the ice house, was not constructive notice to Abbott of the fact of its execution. Under the statute above referred to as construed by this court, a purchaser of land or any interest therein is not charged with constructive notice of any fact which is not connected with the course of his title. Rozell v. Chicago Mill & Lumber Company, 76 Ark. 525; Turman v. Sanford, 69 Ark. 95; Singer v Naron, 99 Ark. 446. To the same effect see Devlin on Deeds, § § 713-4, (1 ed.); 3 Washburn, Real Property, § § 2200-2224 (6 ed.); Frank v. Heidenheimer, 84 Tex. 642 (19 S. W. 855); Davidson v. Pyle, (Tex.) 124 S. W. 616. 3. Counsel for plaintiff also insist that the undisputed evidence shows that the defendant Abbott had actual knowledge of his deed to the lot in question before he paid the purchase money for the ice house, but in making this argument they have failed to take into consideration the testimony of the defendant Abbott. He testifies in positive terms that he bought the ice house and paid for it before he had any knowledge whatever that the plaintiff Parker claimed to own the lot. This presented an issue of fact on this question, which should have been submitted to the jury, and the instruction in' question is erroneous because it excluded that issue from the jury. In view of another trial of the case, it may be well to call attention to what this court has already said upon the question of actual notice. In the case of Gaines v. Summers, 50 Ark. 323, the court held: “A purchaser of-lands takes them with constructive notice of whatever appears in the conveyance which constitutes his chain of title; if sufficient appears therein to put a prudent man on inquiry, which would, if prosecuted with ordinary diligence, lead to actual notice of right or title in conflict with what he is about to purchase, and he fails to make such inquiry, the law will charge him with the actual notice he would have received if he had made it.” See Cooper v. Flesner, (Okla.) 23 L. R. A. (N. S.) 1180; Wade on the Law of Notice, (2 ed.) §§ 5-14; Devlin on Deeds, § 727. Upon one who claims to be an innocent purchaser rests the burden of proving his good faith. Steele v. Robertson, 75 Ark. 228; Bates v. Bigelow, 80 Ark. 136. For the error in giving instruction No. 1, copied above, the judgment .will be reversed, and the cause remanded for a new trial.