The chancery court did not pass on the question of the validity of the lease from appellant, Willie Wilson, to Benson. The decree was against Wilson, and the court canceled the Benson lease only as against the rights of appellees Biles and Armstrong, and this was done for the reason that the title was in appellees and that the lease was not of any validity as against them. The question of the validity of the lease as against Wilson was not fully developed in the trial below. This is evident from a consideration of the record and the appearance of the only testimony, that of witness Murphy, in regard to the lease having been prematurely taken out of escrow by Benson. Opportunity for the trial of that issue should be given on the remand of the cause, instead of directing a decree in favor of Wilson. In other words, the parties ought to have an opportunity to develop that question and to have it decided upon all the testimony which could be adduced on that subject. But, even if the question of the validity of the lease is to be decided in this court, it seems to me that the court has adopted a very rigid rule in holding that Lockhart, the assignee of the Benson lease, is not entitled to any protection at all. The rule of law on the subject is, as stated in the opinion of the majority, that a deed wrongfully and prematurely taken out of escrow without performance of the specified conditions of the deposit does not pass the title of the grantor, but this rule is subject to limitations which are consonant with conceptions of equity and natural justice. In other words, the rule is to be applied only to the extent of protecting the interest of the grantor and no further as against an innocent purchaser. The ends of justice will be fully attained by compelling the innocent purchaser to pay the purchase *Page 930 price, which was sought to be avoided by the wrongful taking of the instrument out of escrow. A court of equity should go no further in applying such a rigid rule.
The proof is undisputed that Lockhart, the assignee of the lease, was an innocent purchaser. He testified that he paid Benson $20,000 for the lease, and that he had no information or notice of any kind that the lease had been in escrow or prematurely taken out of escrow. It being proved that Lockhart paid a valuable consideration for the lease, the burden of proof was upon those attacking the validity of the lease to show that Lockhart had notice of any, infirmity in the title. There is no proof at all in the record charging Lockhart with notice.
My conclusion is therefore that the case ought to be sent back for a trial on this issue; but, if not, the decree ought to provide that Lockhart must pay the consideration named in the lease to Benson; otherwise that the lease be canceled, and only on such failure to pay.