amount to the equitable vendor's lien held against an undivided twosevenths interest therein by the plaintiff by reason of the balance due him on the purchase money for said interest; that the rights of the plaintiff were superior in equity to all the rights and claims of all the defendants except the mortgage and abstract companies, and that plaintiff was entitled to a judgment in the sum of $1,005.66 with interest, for the balance due him for an undivided two-sevenths interest in the lands in controversy, subject to the rights of the mortgage and abstract companies, and ordered the lands sold to satisfy the judgment of the plaintiff, and entered a decree in accordance with such findings. The plaintiff appeals from that part of the court's decree subordinating his lien on his two-sevenths interest in the lands in controversy to the liens of the mortgage and abstract companies.

1. The appellant testified unequivocally that the deed of himself and wife to Obe Thompson to the lands in controversy dated March 18, 1918, at the time the same was delivered to Obe Thompson, had in it the words, "vendor's lien is retained." These words were not stricken out at that time, and if they were stricken out thereafter, it was without any authority from the appellant.

Thompson testified that he did not have the deed that was delivered to him by the appellant; that the deed had been lost or misplaced; he could not find it; he could not say where he last saw it; he did not remember, whether he sent it to the McIver Abstract Company or to its attorney. The attorney for the abstract company testified that he had in his possession a deed from Carter and wife to Thompson, dated March 18, 1918, which conveyed the lands in controversy; that the deed was sent to him in May or June, 1923, by Thompson, after the institution of this action, and witness made a copy of it, but witness did not testify that the words, "vendor's lien is retained," were erased by having a 38 A.L.R.-67.

red line run through them at the time he made a copy of the deed. He did not remember the exact description, nor whether it was signed by Carter and wife, or just by Douglas Carter. After looking it over he mailed it back to Thompson the same day, or the next after receiving it. Thompson testified that he agreed to give the appellant a plain note without any lien whatever against the land, and none was to be in the deed; that the note he gave said nothing about a lien, and that if there was a lien shown in the note it was a forgery.

The note was introduced, dated March 18, 1918, for $700, with the recital that the note was based upon a land deed of even date and given for two-sevenths of an undivided interest in land containing 188 acres, the land in controversy. Thompson testified that the note bore his signature.

It will thus be seen that the testimony of the appellant is consistent, while the testimony of Thompson as to the note is contradictory, and, as to the loss of the original deed executed by appellant to him, is unsatisfactory. The deed itself, if produced, would have been an absolute demonstration of the truth or falsity of appellant's testimony to the effect that this deed contained the words "vendor's lien is retained" when the same was delivered by him to Thompson. We are convinced that the testimony of the appellant concerning this is true, and that a decided preponderance of the evidence shows that in the deed of the appellant to Thompson, conveying the lands in controversy, there was an express reservation of a vendor's lien. Such being the fact, the appellees were bound to take notice of ap- chaser-effect of pellant's vendor's notice in chain lien, because it was in their chain of title. pellees claimed title to the lands in controversy through Thompson, and Thompson's title was derived through the appellant. If Thomp son, at the time he executed the

Vendor and pur

of title.

The ap

mortgages through which the appellees claimed, had no title, then appellees acquired none. Thompson, at the time he executed the mortgages to the appellees, April 5, 1919, had acquired no title by adverse possession as against the appellant, for within less than a year before that he had recognized appellant's title by

Adverse possession-effect of recognizing

title.

Vendor and purchaser-enforcement of lien.

accepting the deed with the vendor's lien reserved for the balance of the pur

chase money evidenced by his note. The appellees were not innocent purchasers because the law is well settled that a vendor's lien "will be enforced against all persons having either actual or constructive notice of its reservation, and a subsequent purchaser or encumbrancer necessarily takes subject to a lien for the purchase money expressly reserved. in the deed conveying the legal title to his grantor or remote grantor, as he is bound to take notice of the provisions and reservations in his immediate grantor's chain of title; and it is immaterial that the deed reserving the lien is not recorded, if the persons against whom the lien is sought to be enforced must claim through such deed." 27 R. C. L. p. 608, 361.

In Stephens v. Shannon, 43 Ark. 464-467, we said: "A vendor of land who has parted with the legal title has nevertheless, in equity, a lien for the purchase money as against the vendee and his privies, including subsequent purchasers with notice. The deed of Shannon, which contains the reservation of the lien, was not placed on record. But Stephens was affected with notice of all recitals in the title deeds of his vendor, whether they were of record or not." See also Stidham v. Matthews, 29 Ark. 650; Stroud v. Pace, 35 Ark. 103; Gaines v. Summers, 50 Ark. 322, 7 S. W. 301; Abbott v. Parker, 103 Ark. 429, 147 S. W. 70; GraysoniaNashville Lumber Co. v. Saline De

velopment Co. 118 Ark. 199, 179 S. W. 129.

2. Notwithstanding this doctrine, learned counsel for the appellees contends that they are innocent purchasers, because, in preceding conveyances to Thompson, certain grantors had stated that they were the sole heirs of the record owner of the land, and the examiner of the abstract of title, before he approved the title upon which the appellees relied, required an affidavit to be furnished showing who were the sole surviving heirs of the record owner. But the undisputed evidence shows that the appellant was an heir of the record owner of the title, and had acquired through inheritance a one-seventh interest, and, through purchase from his sister, another one-seventh interest, and that he was the real owner of a two-sevenths interest of the lands in controversy, at the time he conveyed the same to Obe Thompson and reserved the vendor's lien and that he had such lien at the time Thompson executed the deed of trust to the appellees under which they claimed. Therefore, the contention of counsel for appellees cannot be sustained, for the reason that the appellant, as the real -bona fide pur

heirship.

owner of the land in chaser-effect of controversy, could statements as to not be deprived thereof by recitals in deeds of other heirs and owners that they were the only heirs, backed up by an ex parte affidavit to that effect. The ex parte affidavit and the recitals in the deeds of other joint owners to the effect that they were the Evidence-recitonly owners were als of heirshipwholly incompetent to prove that the appellant was not an heir of George W. and Melissa E. Carter, the original owners of these lands, and that certain others, whose deeds Thompson held, were the only heirs. A vendor, as against those holding joint and

effect.

Vendor and pur

equal rights, can chaser-extent convey only such of power to conrights as he in fact

vey.

has, and his vendee takes subject to

As is well said in 27 R. C. L. p. 668, § 431: "He who has no title can convey none, and a bad title is not made good by the ignorance of the purchaser of its defects, or his want of knowledge of the better title."

The appellant, being the owner of the lands in controversy, and having conveyed the same to Thompson,

-lien-effect of failure of purchaser to disclose rights.

with a reservation of his vendor's lien, cannot be deprived of the benefit of

such lien through the failure of Thompson, by recital in his mortgage or otherwise, to disclose appellant's rights. If Thompson had forged deeds from the other heirs of Melissa E. Carter to himself, containing the recital that they were the only heirs, and had placed these deeds of record, this would not have affected the rights of appellant as a coheir of Melissa E. Carter. It would be an anomalous and dangerous doctrine to hold that one who sold his land, expressly reserving a vendor's lien, could be deprived of his rights to such lien by any such fraudulent conduct on the part of his vendee or any third party. Titles and rights in lands cannot be vested and devested in any such manner. See 27 R. C. L. p. 674, 88

438, 439, and cases cited in note.

It follows that the trial court erred in holding that the mortgages of the appellees were superior and paramount to the right of the appellant under his vendor's lien. For this error, the judgment is reversed and the cause is remanded, with directions to enter a decree declaring the appellant's rights in the lands in

controversy under his vendor's lien superior to the rights of the appellees, and for such other and further proceedings as may be necessary according to law and not inconsistent with this opinion.

McCulloch, Ch. J., dissenting:

The undisputed evidence is that the ancestor of appellant and of appellee Thompson died about twentysix years before the execution of the mortgage to appellee Security Mortgage Company; that Thompson was in exclusive possession of the property, claiming title by inheritance as to an undivided interest, and from the other heirs under recorded deeds, and that the mortgage company made inquiry concerning the number and identity of the heirs of the ancestor, and received evidence in the form of an affidavit that Thompson and his grantors in the recorded deeds were the only heirs. The chancery court found that the inquiry made by the mortgage company was sufficient, and that the company was an innocent purchaser for value.

All of the authorities mention, as the elements of a bona fide purchase of land, "a valuable consideration, the absence of notice, and the presence of good faith." This is the definition adopted by this court in Manchester v. Goeswich, 95 Ark. 582, 130 S. W. 526. Notice which will defeat the claim of innocent purchase may be either actual or constructive. It must be conceded

that in the present case the mortgage company had no actual notice of appellant's adverse claim, for there is no evidence of any information conveyed to the mortgage company on that subject, or any infor

mation which would lead to a discovery of appellant's claim. But the opinion of the majority holds, as I understand it, that the inheritance of the land from a common ancestor who was the holder of the record title constituted constructive notice of the number and identity of the heirs who inherited. That is the point of my disagreement with the

majority. I concede that the devolution of the estate from the ancestor who held the record title constituted constructive notice to all subsequent purchasers from the heirs, but the matter of the identity of the heirs is not one of constructive notice, but rests upon evidence aliunde, and depends upon actual notice, or notice of such a fact as would put a purchaser upon inquiry. The identity of the heirs is a matter in pais, and necessarily depends upon actual knowledge; therefore, there is no constructive notice of such identity.

Professor Pomeroy, in his work on Equity Jurisprudence, 4th ed. vol. 2, § 607, says: "It may be stated as a general proposition that in all instances of constructive notice belonging to this class, where it arises from information of some extraneous facts, not of themselves tending to show an actual notice of the conflicting right, but sufficient to put a prudent man upon an inquiry, the constructive notice is not absolute; the legal presumption arising under the circumstances is only prima facie; it may be overcome by evidence, and the resulting notice may thereby be destroyed. Whenever, therefore, a party has merely received information, or has knowledge of such facts sufficient to put him on an inquiry, and this constitutes the sole foundation for inferring a constructive notice, he is allowed to rebut the prima facie presumption thence arising by evidence; and if he shows by convincing evidence that he did make the inquiry, and did prosecute it with all the care and diligence required of a reasonably prudent man, and that he failed to discover the existence of, or to obtain knowledge of, any conflicting claim, interest, or right, then the presumption of knowledge which had arisen against him will be completely overcome; the information of facts and circumstances which he had received will not amount to a constructive notice. What will amount to a due inquiry

must largely depend upon the circumstances of each case."

We have here a typical case of the application of the doctrine. The mortgage company was dealing with one who was in actual occupancy of the land in controversy under record title, and there was nothing to constitute notice of an adverse claim. The ancestor had been dead twenty-six years, and to protect itself the mortgage company made inquiry as to the number of heirs. There is an element of estoppel involved in the application of the doctrine, and of this Professor Pomeroy (in § 735) says: "When the original legal owner has done or omitted something by which it was made possible that his property should come into the hands of a bona fide holder by an apparently valid title, it may be just to regard him as estopped from asserting his ownership, and thus to protect the subsequent purchaser. But when the prior legal owner is wholly innocent, has done and omitted nothing, it certainly transcends, even if it does not violate, the principles of equity, to sustain the claims of a subsequent and even bona fide purchaser."

Appellant, by yielding possession to his cotenant, Thompson, clothed the latter with the highest evidence of ownership, and he thus made it possible for a subsequent purchaser to be deceived. He could have retained possession as evidence of his ownership, or he could have preserved his security in the form of a mortgage, so that it could be put upon record as constructive notice. He did neither, and, as he was to that extent in the wrong, he should be the sufferer instead of the subsequent purchaser, who was innocent of any notice of his claim.

The majority base their conclusions upon a statement from the textbook that "a bad title is not made good by the ignorance of the purchaser of its defects or his want of knowledge of a better title." This is far from being a correct statement of the law, as is evidenced

by many decisions of this court. See Crawford & M. Dig. subject, "Vendor and Purchaser," vol. 4, §§ 81 et seq. See especially Case v. Caddo River Lumber Co. 126 Ark. 240, 190 S. W. 440, Ann. Cas. 1918C, 80, where the opinion was written by the justice who now speaks for the majority. A bad title has, in fact, been often made good under certain circumstances by the ignorance of a subsequent purchaser. The books are full of cases where this rule has been recognized, for, if the statement of the law quoted by the majority is correct, then the doctrine of innocent purchaser is completely obliterated.

In Stubbs v. Pyle, 137 Ark. 538, 209 S. W. 723, we said: "Pyle had possession and the record title at the time he mortgaged the property to Brun, and at the time he subsequently executed the deed to Durham, and the parties who dealt with him had the right, in the absence of notice to the contrary, to assume that he was the owner. They were not bound to make inquiry concerning the prior possession of Jones under his unrecorded contract. The parties so dealing with Pyle had the right to treat his possession as referable to his record title."

I am unable to perceive why the identity of an heir of a deceased former owner of land should constitute absolute constructive notice, any more than any other fact in

pais. It is a fact which may or may not rest upon doubtful evidence, and if a purchaser, in accepting a conveyance from one in actual possession of land, makes such inquiry as a reasonably prudent person would make under the circumstances, then he is entitled to protection as an innocent purchaser. The extent of the inquiry, of course, depends upon the facts of a given case. Where the descent has been recently cast, the fact may be deemed so plain that there is no ground upon which a claim of innocent purchase can be rested; but where, as in this case, the ancestor has been dead a great length of time, and the heirs are scattered and their identity uncertain, I see no reason why the purchaser should not be protected as well as from any other secret adverse claim. I do not contend that the real owner of the land could "be deprived thereof by recitals in deeds of other heirs and owners that they were the only heirs," nor that a vendor could be deprived of his right to a lien merely on account of the fact that his deed of conveyance is unrecorded. I do contend, however, that where one has no record title, and for a long lapse of time permits his property to be held under circumstances which completely obscure his interest, one who buys for a valuable consideration and without knowledge of his claim should be protected as an innocent purchaser.

It is a general rule that a title by descent, where heirship on which the title is based is clearly established, is good and constitutes a compliance with the vendor's covenant to convey a good or marketable title. 27 R. C. L. 501, § 223. But a mere recital in a deed that the grantors are the sole heirs at law of a deceased owner of the record title does not sufficiently establish that fact.

Arkansas.-CARTER V. THOMPSON (reported herewith) ante, 1053.

Iowa.-Ross v. Loomis (1884) 64 Iowa, 432, 20 N. W. 749; Soukup v. Union Invest. Co. (1892) 84 Iowa, 448, 35 Am. St. Rep. 317, 51 N. W. 167.

Michigan. Wolf v. Holton (1895) 104 Mich. 107, 62 N. W. 174.

Mississippi. Jones V. Sherman (1879) 56 Miss. 559.

Pennsylvania. Watson v. Gregg