Shenoy v. Phipps
| Decision Date | 12 July 1920 |
| Docket Number | 118 |
| Citation | 224 S.W. 393,145 Ark. 121 |
| Parties | SHENOY v. PHIPPS |
| Court | Arkansas Supreme Court |
Appeal from Garland Chancery Court; C. Floyd Huff, Special Chancellor; affirmed.
STATEMENT OF FACTS.
Rachel Shenoy and Mollie Jackson brought this suit in equity against Harold H. Phipps to foreclose a lien for the unpaid purchase price of the east half of lot 11, block 70, in the city of Hot Springs, Garland County, Arkansas. Phipps defended on the ground that he was bona fide purchaser of the property for value, and that the purchase price had been paid. Caroline Jones died owning the property and left surviving her four children, viz.: Mollie Jackson, Elmira Jackson, Hannah Norman, and Rachel Shenoy. She devised the property in question to the first three named children, having given the other half of the lot to Rachel Shenoy. After the death of Caroline Jones, Mollie Jackson, Elmira Jackson and Hannah Norman brought suit for the partition of said property. It was ordered sold by the chancery court for the purpose of division. Under the terms of the decree the commissioner was ordered to retain a lien on the property for the purchase money. Hannah Norman became the purchaser at the sale, having bid for the property the sum of $ 2,200. Subsequently the commissioner executed to her a deed to the property. The deed contains a recital as follows:
"In order to carry into effect the sale made as aforesaid in pursuance to the decree of said chancery court in consideration of the premises, and the said sum of $ 2,200 hath granted, bargained and sold," etc.
Subsequently the commissioner appeared in open court and acknowledged the execution of the deed, and the sale was in all things confirmed and approved by the court. The sale was approved in open court on the 17th day of July, 1950. Afterward Elmira Jackson died, and Rachel Shenoy was the sole legatee under her will.
According to the testimony of Rachel Shenoy and Mollie Jackson, Hannah Norman only paid to her sisters $ 500 each of the purchase price. This left $ 700 to be divided equally between the three sisters, including Hannah Norman.
R. G Davies, their attorney in the partition proceedings testified that Hannah Norman did not pay the purchase price of the lot at the time she purchased it; that he left the State soon afterward and was gone four or five years; that some time after his return Mollie Jackson employed him to collect the balance of the purchase price.
D. W Carr testified that he bargained with Major Pemberton for the property; that Major Pemberton had purchased it from Hannah Norman; that Hannah Norman had sold it to him to get the money with which to pay her two sisters the balance of the purchase price; that he sold his claim to the defendant, Phipps, and that the latter knew at the time he purchased the property that Hannah Norman's sisters claimed that there was a balance due them on the purchase price.
The defendant Phipps was a witness for himself. According to his testimony, he paid Major Pemberton full value for the property and purchased it without any notice that the plaintiffs claimed there was a balance due on the purchase money from the chancery sale in partition. Phipps entered into possession of the property in 1914, after he had purchased it, and has been in possession of it ever since.
Other evidence will be stated or referred to in the opinion.
The chancellor made a general finding in favor of the defendant, and a decree was entered accordingly. To reverse that decree, the plaintiffs have duly prosecuted this appeal.
Decree affirmed.
R. G. Davies, for appellants.
Defendant Phipps was not an innocent purchaser for value. The purchaser of real estate is bound to take notice of all recitals in his chain of title and to investigate same. 40 Ark. 108.
A. Curl, for appellee.
An examination of the decree shows that appellant and all other interested parties were before the court and all interests were adjusted and the east half of lot 11 ordered sold for the purpose of partition among the owners and that a commissioner was appointed to make the sale. The testimony was taken by agreement and on behalf of plaintiff, and either party could read it. 15 Ark. 345; 85 Id. 263. If appellant had a cause of action against anyone, he has been guilty of such laches as to forever bar him.
OPINIONHART, J. (after stating the facts).
We think the chancellor was warranted in...
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