White v. Moffett

Kirby, J., (after stating the facts). It is contended by appellant that since the deed from Carroll to N. R. Moffett, the father of appellees, was not placed of record until more than two years.after the deeds made by said Carroll and wife to Frankie Moffett, his widow, and from her to Sam Johnson, conveying the land, had been recorded, that .they were not bound to take notice of same, it not being in their chain of title, and that in any event their grantor, Sam Johnson, was an innocent purchaser of the lands and that they acquired all his rights, as such, without regard to the record of said conveyances. There is no question but that one who purchases land in good faith for a valuable consideration and without notice of any adverse claim thereto, acquires a good' title as against the unrecorded title of a prior purchaser from the same grantor. Long v. Langsdale, 56 Ark. 239; Penrose v. Doherty, 70 Ark. 256. It is also a well established principle of law that a purchaser of real estate must take notice of all prior recorded instruments in the line of his purchased title. Thompson v. Bowen, 87 Ark. 492. It is equally true that, “A person purchasing an interest in lands ‘takes with constructive notice of whatever appears in the conveyance constituting his chain of title.’ If anything appears in such conveyance ‘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. ’ ’ Gaines v. Summers, 50 Ark. 327; Stroud v. Pace, 35 Ark. 103. Appellants insist that since the deed from Carroll and wife, the common source of title, to N. R. Moffett, appellees’ father, was not placed of record until more than two years after the deed from Carroll and wife to Frankie Moffett and her deed to Sam Johnson conveying the same lands were recorded, that they were not bound by constructive notice thereof, nor required to look for the record of any such conveyance or instrument, it not being in their chain of title. We do not deem it necessary to determine whether they were bound to take notice of such deed from its record, for the reason that both the appellant and his immediate grantor had notice in fact of the deed from Carroll to N. E. Moffett, at the time of their purchase of the land, the abstract of-title furnished them showing such deed, although it was shown to be recorded after the deeds to Frankie Moffett and Sam Johnson, already referred to, were put of record. Of course, if Sam Johnson was an innocent purchaser of the land, appellant having succeeded to his title, would also be entitled to the same protection as an innocent purchaser, and in Osceola Land Co. v. Chicago Mill & Lbr. Co., 84 Ark. 1, this court said: “When a party relies upon the defense of being a bona fide purchaser and shows that he has paid a valuable consideration, the burden of showing that he purchased with notice is upon the party alleging it, or who relies on the notice to defeat the claim of a bona fide purchaser.” Appellant contends in his argument that Sam Johnson was a bona fide purchaser, although the answer does not allege it, and that his deed recites a valuable consideration paid, and there being no evidence tending to show that he was not such purchaser, that the court erred in its direction of a verdict. Appellees realized at the time of the trial that the burden was upon them- to show notice on the part of Sam Johnson to defeat the claim that he was a bona fide purchaser of the lands and offered to prove this fact, but the court, upon objection of appellant, declined to receive, and rejected such proof, and he can not be heard now to insist that he should recover the lands because there was no proof, showing that Sam Johnson, a grantor in his line, was not an innocent purchaser, when the proof of such fact was rejected upon his objection. The case can not be tried here on an issue not raised below. Newton v. Russian, 74 Ark. 92; Schenck v. Griffith, 74 Ark. 562. The deed from T. P. Carroll and wife to N. E. Moffett, appellees’ father, was effectual to pass the title to the lands, which could not be divested by the loss or destruction of such deed of conveyance. Cunningham v. Williams, 42 Ark. 170, 12 S. W. 1216, 6 L. R. A. 783; Campbell v. Jones, 52 Ark. 493; Ames v. Ames, 80 Ark. 9; Foster v. Elledge, 153 S. W. 819, 106 Ark. 342. Appellants had actual notice of this deed before purchasing the lands and knew that it was prior in time to Carroll’s deed to Frankie Moffett, and her deed to Sam Johnson, under which he claims title, and he can not occupy the position of a bona fide purchaser for value without notice. Carroll and his wife, having conveyed the title to the lands by the deed to N. R. Moffett, had no title thereafter and. the second deed to Frankie Moffett did not operate to convey any. It follows that appellees were entitled to recover the lands, and the court did not err in directing the verdict. The judgment is affirmed.