(on rehearing). Our attention has again been called to this case by petition for rehearing. Appellee insists that he not only has title from D. F. Scott, but that he has a deed from the county clerk, based upon a certificate of purchase by A. M. Eastman upon a forfeiture for the non-payment of taxes by H. S. Ellis. It is said that this deed was made a part of the record in. this case. "We have found such a deed on pages 57 and 58 of the transcript in the record, hut it covers lot 2 in block 1 in Argenta, Arkansas. We have been unable to find a deed from the clerk to appellee, such as is suggested, lots 1 and 4. Appellee has not cited us to any page in the record before us where such a deed appears. Of course, if the deed referred to covered lots 1 and 4, then appellee would have a title independent of the common source, and, in that event, appellant necessarily would have had to recover on the strength of his own title.
Again, it is insisted that George Eickhoff acquired the tax certificates, which had been issued to John Scott, in trust t© be sold for the benefit of himself and D. P. Scott, and that he did not acquire the certificates of purchase outright. There was a sharp conflict in the testimony of D. P. Scott and George Eickhoff in this regard. Even if it were permissible to engraft a trust on the instrument by oral evidence, it would have to be done by clear and convincing evidence. Where only two testify and their evidence is in direct conflict, and where neither witfiess had been legally impeached, it can not be said that the one upholding the affirmative has met the requirements of the rule. But the court is of the opinion that the trust contended for by appellee can not be en-grafted upon the instrument by oral evidence.
It is also contended that appellants are estopped because George Eickhoff purchased the lots under execution sale to satisfy a judgment against appellee and the redemption by appellee of the lots from the execution sale. As we understand the law, the party claiming title has a right to purchase- an outstanding title without affecting his right to assert or defend his original title. The redemption by appellee from the execution sale can not estop Eickhoff because he was not put to an election by the redemption. Appellee was entitled to redeem as a matter of law, and not at the election of Eickhoff.
It is also insisted that appellee is protected under the doctrine of innocent purchaser. As we understand the case, appellee knew from the record that the land had been sold to John Scott for the non-payment of taxes and that the certificates were outstanding in his name. The certificates were assignable and he must necessarily have taken notice of that fact. D. F. Scott succeeded to the rights of John Scott and Eickhoff procured the certificates from D. F. Scott. The record also showed that Eickhoff had paid the taxes for some nine years. Under these facts, in order for appellee to avail as an innocent purchaser, it would have been his duty to inquire of D. F. Scott concerning the whereabouts of the tax certificates of purchase.
It is said by appellee that he placed one hundred loads of dirt on the lots, worth $100, after he acquired his quitclaim deed from D. F. Scott. We have re-read appellee’s original brief and find no suggestion of that fact or that he claimed anything for improvements under the Betterment Act. So far as we have been able to ascertain, appellant did not abstract any evidence showing that the dirt had been placed on the lots by appellee and this evidence was not supplied in the original brief of appellee.
After careful consideration, the court is of opinion that it did not err in its judgment of reversal. The motion for rehearing is, therefore, overruled.