Glass v. Hardison Et Ux.

* Corpus Juris-Cyc. References: Vendor and Purchaser, 39Cyc, p. 1702, n. 17, 20; p. 1703, n. 30; p. 1705, n. 31; p. 1720, n. 29. On the question as to sufficiency of facts to put purchaser of real property on inquiry as to outstanding equities, see 27 R.C.L. 710; 3 R.C.L. Supp. 1519; 4 R.C.L. Supp. 1764. The appellant, D.H. Glass, filed his bill against D.E. Hardison and wife for partition of certain land, of which he (Glass) claimed to be the owner of an undivided one-half interest. The appellees answered, and denied that *Page 761 Glass, the appellant, had any title to the land, and claimed that they owned the entire interest therein. There was a cross-bill filed, and a cross-appeal is taken to this court by the appellees, as well as a direct appeal by the appellant, Glass, for the purpose of settling the propositions of law involved. The case, however, was heard upon certain evidence before the chancellor, and his finding of fact appears in his written decree in this record.

The questions presented for our decision on the direct appeal are: First, whether or not the appellant, Glass, secured a good title to a one-half interest in the land involved from one W.B. McGarrah, as an innocent purchaser for value; or whether the appellant, Glass, purchased a one-half interest in the land after being put upon inquiry by the records of the county, which, if followed up, would have shown that McGarrah's interest was subject to other claims and interests of the other appellees herein, who had equities amounting to several thousand dollars against the land; and, second, whether or not the appellant, Glass, could assert his interest in the land in the partition proceedings without first having paid the amount due by him to McGarrah, for the transfer of McGarrah's interest to Glass. The record shows that Glass executed a note for one thousand dollars and signed a check for one thousand dollars which represented the consideration for the purchase price of the one-half interest purchased from McGarrah; but that Glass had the note and check held, as we may say, in escrow, by his attorney and the check and note have never been delivered in payment of the purchase price of the one-half interest in the land.

The chancellor held, under the law and the facts, that:

"D.H. Glass is not a bona-fide purchaser for value without notice of the prior and paramount equities against the interest of his grantor, W.B. McGarrah, in said lands; that the records, as shown by the evidence in this cause, were sufficient to put him on notice and inquiry, which, if followed out as a reasonably prudent *Page 762 man would do, would have disclosed to him all of the facts shown by the evidence in this cause in regard to the true condition of the title to said lands; and because, further, the full purchase price of the land has not been paid by D.H. Glass."

The chancellor further held that whatever interest Glass secured from McGarrah was subject to an indebtedness imposed upon said land by W.B. McGarrah in his deed of trust to J.W. Rimmer and brother, of record in Book 47, p. 387.

The appellant, Glass, contends that the deed of trust just mentioned had been canceled of record, and that, therefore, he had no notice sufficient to put him on inquiry as to any equity against the land held by the other parties mentioned herein. The cancellation of the deed of trust, on the records, as entered by the clerk, was in the following words: "This deed of trust has been fully paid and satisfied by renewal. This 16th day of June, 1920," attested by the clerk.

We think that the record showing cancellation "by renewal" was sufficient notice to Glass, the purchaser, to put him on inquiry, which, if followed up, would have revealed to him the other equities chargeable against the land he was attempting to purchase from McGarrah. Therefore the decree of the chancellor in this regard is correct.

We also think correct the holding of the chancellor on the other proposition, that is, that the appellant, Glass, is in no position to claim title and demand partition of the land involved, because he is not a bona-fide purchaser for value of the land, since he has not, as yet, paid out anything on the purchase price of the one-half interest he bought. He has not been damaged, so far as paying for the land is concerned, because the check and note executed by him for one thousand dollars each are still retained by the attorney, and may be returned to Glass, in which event and even now, he cannot be said to be a purchaser for value paid. If it could be said that appellant's *Page 763 contention that he was an innocent purchaser, so far as the records are concerned, is correct, which we hold otherwise, still he could not claim that he was "an innocent purchaser for value," because he had not paid the purchase price of the land. Parker v. Fox, 43 Miss. 265, 5 Am. Rep. 484. Therefore we think that the chancellor's conclusion on that proposition was correct.

The cross-appeal is upon the ground that the chancellor erred in appointing a master to take and state an account between the parties, and in holding that W.B. McGarrah had a one-half undivided interest in the Briscoe place, and, as such, is a tenant in common with D.E. Hardison and wife; and that it was error for the court to refuse to cancel the title of W.B. McGarrah and the deed from McGarrah to D.H. Glass, as clouds on the title of Hardison and wife; and in holding that Glass, the grantee of McGarrah, is the owner of an undivided one-half interest in the Briscoe place, and a tenant in common with Hardison and wife; and in decreeing a sale of the Briscoe place and a division by the proceeds, after adjusting the equities between the parties; it being contended by cross-appellant that the chancellor should have canceled, outright, the claim of McGarrah and Glass, and awarded the land wholly to Hardison and wife. Without going into a detailed discussion of the question involved, it is our judgment that the holding of the chancellor, as shown by his written decree in this regard, was correct under the finding of facts in the record, and the decree of the chancellor relative thereto was also correct. Therefore the decree should be affirmed on cross-appeal.

In view of the conclusions reached above, the decree of the lower court on direct appeal and cross-appeal is affirmed, and the cause remanded for further proceedings.

Affirmed on direct and cross-appeal, and remanded.

Affirmed and remanded. *Page 764