ON REHEARING.
Seevers, J.— In a petition for a rehearing the counsel for .the plaintiff insists that the bank, under whom the defendant ■claims, had both actual and constructive notice of the title or interest of James W.. Berry in the land in controversy. We ■are entirely content with the disposition made in the foregoing opinion of the question of constructive notice.
A more satisfactory disposition can be made of the question of actual notice than has been done in the foregoing ■opinion by quoting and referring to the testimony bearing on that point. Such testimony consists of two depositions of X). L. Clark, the president of the bank; one being taken by plaintiffs, and the other by the defendant. Mr. Clark is an .attorney, and was engaged in looking up the titles to the Berry lands so as to enable him intelligently to bid on the ■same when offered for sale under the execution in favor of the bank, and he testifies :
“I know- that James W. Berry made a deed to A- J. Berry for the undivided half of the lands. * * I .cannot say when I.first .learned the consideration, but when I was..looking up *170the Berry matters I found the deed was made to avoid a prosecution. I cannot say how I learned it, but think I learned it from the Berrys that A. J. Berry did not pay him anything for the land. I learned these facts while looking up the Berry matters. ” This, the witness says, was prior to May 28, 1870, and he thinks it was sometime in 1868 or 1869.
This question was asked Clark: “What inquiry did you make prior to date of sale under execution as to the nature- and extent of the claim and interest of James W. Berry to said, land?” He answered as follows: “Prior to that sale I made inquiries of the Berrys, and also James W. Berry. I think James W. Berry said he had no title to the land.” Clark, also testifies that he thinks James W. Berry knew the land' was to be sold as the property of A. J. Berry, on the judgments in favor of the bank against him, and James W. Berry made no objection to the sale, to the knowledge of Clark.
The foregoing presents the substance of the testimony of Clark, and there is no other on the point now under consideration. It is quite apparent that the bank, through Clark, before the sale of the land, became possessed of knowledge tending to show that the conveyance made by James W. Berry to A. J. Berry was made without consideration, and was, therefore, void as against the creditors of the former.
Whether such knowledge constituted sufficient notice of the equitable title of James W. Berry, within the rule laid down in Wilson v. Miller et al., 16 Iowa, 111, we shall not stop to inquire. It was sufficient, we think, to put the bank on inquiry as to the title and interest of James W. Berry, who at-the time was in possession of the premises.
Clark must have so understood; at least he did inquire of James W. Berry as to his title, and was informed he had none. Belying on this information, as it well might, the bank purchased at the sale on execution.
The legal title of record was in A. J. Berry up to the 16th *171day of December, 1868, when he conveyed to James W. Berry, but this conveyance was not placed on record until October 5, 1869.
If the inquiry was made before the former date it may be said that James W. Berry spoke the literal truth, but he did not speak the whole truth as he was bound to do. He, without doubt, we think, knew the object of Clark’s inquiry; but, whether he did or not, he should have disclosed whatever interest he had, and, failing to do so, he is bound and es-topped from now asserting a title or interest which he failed to disclose.
The plaintiffs, in this respect, stand in the shoes of James W. Berry, and if this action were by the latter, to set aside the title of the bank, or the defendant, who claims through it, on the ground that the bank had notice of his interest or title, we think, upon every principle of common honesty and fair dealing, he should be estopped to now say what he should at the time have said.
The bank was justified in believing James W. Berry had no-interest in the land, and as the legal title was in A. J. Berry when its judgment was rendered, it was a purchaser for value, without notice of the title or interest of James W. Berry.
The former opinion is adhered to.