Guice v. Burrage

WALLER, Circuit Judge

(specially concurring) .

I concur in the foregoing opinion for the reasons stated, but also because of the *308well-known principle of equity that “where one of two innocent persons must suffer a loss, it should fall upon him who by reasonable diligence and care could have protected himself, rather than upon him who could not.” Savings Bank v. Creswell, 100 U.S. 630, 25 L.Ed. 713. The plaintiffs did not read nor have read to them the deeds to the mineral interests which they admittedly signed. This was a failure to exercise due care to protect themselves. Koenig v. Calcote, Miss., 25 So.2d 763, 967; McCubbins v. Morgan, Miss., 23 So.2d 926.

Because of their negligent failure to read or to have the deeds read to them, plaintiffs not only failed to exercise due care to protect themselves but made it possible for innocent third parties to become ,.bona fide purchasers for value of the pampers which they thus innocently, but negligently, helped to set in motion.