Elk Horn Bank & Trust Co. v. Spraggins

• Decision Date: 23 June 1930
• Docket Number: No. 54.,54.
• Citation: 30 S.W.2d 858
• Parties: ELK HORN BANK & TRUST CO. et al. v. SPRAGGINS.
• Court: Arkansas Supreme Court

Page 858

30 S.W.2d 858

ELK HORN BANK & TRUST CO. et al. v. SPRAGGINS.

No. 54.

Supreme Court of Arkansas.

June 23, 1930.

Rehearing Denied September 22, 1930.

Appeal from Clark Chancery Court; C. E. Johnson, Chancellor.

Suit by Mrs. R. F. Spraggins against the Elk Horn Bank & Trust Company and others to foreclose a vendor's lien on real estate. From the decree, the Bank and others appeal.

Affirmed.

Mrs. R. F. Spraggins brought this suit in equity against S. W. Hearn and wife and Elk Horn Bank & Trust Company and others to foreclose a vendor's lien on real estate.

The record shows that on the 1st day of December, 1919, Mrs. R. F. Spraggins executed a warranty deed to S. W. Hearn to a tract of land in Arkadelphia, Ark. The deed was duly acknowledged before a notary public on the same day. The deed recites a consideration of $600, evidenced by a promissory note due one year after date of December 1, 1919, payable to the order of Mrs. R. F. Spraggins and bearing interest at the rate of 8 per cent. per annum. The deed further recites that to secure the payment of this note a lien is retained on the lots described in the deed. The note was also introduced in evidence and contains the following indorsement: "Received on this note $100 and interest on August 2, 1922. Interest paid in full up to December 1st, 1925. Received $500 on this note February 11, 1925." On the same day a letter was written by S. W. Hearn to Mrs. Spraggins, stating that he had sent her $500 and would send her the other $100 and the interest next month. According to the testimony of Mrs. Spraggins, the credits on the note show the dates and the correct amount thereof. There was a balance due on the note of $157.34, with interest from February 11, 1925.

On March 26, 1926, S. W. Hearn gave the Elk Horn Bank & Trust Company a mortgage on the above-described land for $3,250. This mortgage was duly filed for record at the time it was executed. The deed of Mrs. Spraggins to S. W. Hearn was not filed for record until February 26, 1926. The bank foreclosed its mortgage and became the purchaser at the foreclosure sale of the mortgage property. It then conveyed the tract of land in controversy to Thomas A. Hearn, Jr., and wife and Mrs. Sallie Hearn. The bank paid a materialman's lien on the land for $92.72 and asked for judgment against Thomas A. Hearn, Jr., for one-fifth of that amount which is $18.54.

It was decreed that the plaintiff have judgment against S. W. Hearn for $217.68, with 8 per cent. interest, and that the land described in the complaint be sold for the satisfaction of said judgment. It was further decreed that the bank have judgment against Thomas A. Hearn, Jr., for $18.54, with 8 per cent. interest. The bank and Sallie Hearn and Thomas A. Hearn, Jr., have appealed.

McMillan & McMillan and D. H. Crawford, all of Arkadelphia, for appellants.

McElhannon & Callaway, of Arkadelphia for appellee.

HART, C. J. (after stating the facts).

It is well settled in this state that a vendor of land who has parted with the legal title has in equity a lien for the purchase money against the vendee and his privies, including subsequent purchasers with notice. The deed of plaintiff to S. W. Hearn which retains the reservation of the lien was not placed on record, but the bank and subsequent purchasers from S. W. Hearn were charged with notice of all recitals in the title deeds of their vendor whether they were of record or not. No principle of law is better established in this state than this, that one is bound by whatever, affecting his title, is contained in any instrument through which he must claim title, even though it be not recorded and he have no actual notice of its provisions. Stephens v. Shannon, 43 Ark. 464; Green v. Maddox, 97 Ark. 397, 134 S. W. 931; Graysonia-Nashville Lumber Co. v. Saline Development Co., 118 Ark. 192, 176 S. W. 129; Union & Planters' Bank & Trust Co. v. Simmons, 166 Ark. 285, 265 S. W. 953; Ponder v. Gibson-Homans Co., 166 Ark. 591, 266 S. W. 682, and Robertson v. American Investment Co., 170 Ark. 413, 279 S. W. 1008.

This rule is conceded, but it is insisted that the rule has been changed by section 7382 of the Digest (Crawford & Moses) when construed in connection with section 7408 of the Digest. The latter section was passed...