Spellman v. McKeen

Mississippi Supreme Court

Spellman v. McKeen

51 So. 914, 96 Miss. 693

DecidedMarch 15, 1910

StatusPublished

This text of 51 So. 914 (Spellman v. McKeen) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Spellman v. McKeen, 51 So. 914, 96 Miss. 693 (Mich. 1910).

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Opinion

SMITH, J.,

delivered tbe opinion of the court.

Appellee sold to S'. P. Biarton certain lands for the sum of $2,000, taking his promissory note therefor due and payable-at a later date, which note is still unpaid. The only recital in the deed executed by appellee to Barton relative to the consideration thereof is as follows: “In consideration of $2,000- and other considerations, I hereby convey,” etc. This deed was duly recorded. Barton sold the land to appellants, who-had no notice that the purchase money therefor was still unpaid. Appellee is a citizen of Vigo county, Ind., and is well known therein. He also has business 'interests in Hinds-county, Miss., and is well known therein. The bill in effect alleged that appellants were put upon notice of the fact that the purchase money of said land was unpaid, and that, consequently, appellee had a vendor’s lien thereon to secure the-same, by reason of the recital, “and other considerations,” contained in the deed, and prayed that said lands be sold to satisfy the lien. To this bill a demurrer was interposed, and, to> same being overruled, an appeal was taken to- this court to-settle the principles of the case.

In Deason v. Taylor, 53 Miss. 701, the general rule governing this matter is thus stated: “Nothing is- better settled than that the purchaser of real estate is bound to take notice of all recitals in the chain of title through which his own title is derived. Not only is he bound by everything stated in the several conveyances constituting that chain, but he is bound fully to investigate and explore everything to which his attention is thereby directed.” The qualification of this general rule is as stated in 23 Am. & Eng. Ency. of Law (2d ed.) 510: “In order to impute constructive notice to a purchaser [699]*699by reason of recitals in instruments affecting his title, the recitals relied upon must be so clear and distinct as to put an ordinarily prudent person upon inquiry, and must be so far correct and intelligible that upon proper inquiry they would lead the purchaser to knowledge of the particular fact or in-cumbrance with notice of which it is sought to charge him.”

In order to uphold appellee’s contention it would be necessary for us to- hold that the recital, “other considerations,” so clearly and distinctly indicates that the purchase money of the land is probably unpaid as to cause a reasonably prudent man to make inquiry relative thereto. This we cannot do-. This-recital indicates nothing more than that there- was a consideration for the deed other than the $2,000, and does not in the remotest degree indicate that any part of the purchase money is probably unpaid. It is true that, by inquiring of appellee, appellants would have learned this fact; but the question isr Was it their duty to make such inquiry? The best reasoned case we have seen'on this subject, and which fully supports-the foregoing views, is Acer v. Westcott, 46 N. Y. 384, 1 Am. Rep. 355.

The decree of the court below is reversed, the demurrer sustained, and the bill dismissed. Reversed.

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SMITH, J.,

delivered tbe opinion of the court.

Appellee sold to S'. P. Biarton certain lands for the sum of $2,000, taking his promissory note therefor due and payable-at a later date, which note is still unpaid. The only recital in the deed executed by appellee to Barton relative to the consideration thereof is as follows: “In consideration of $2,000- and other considerations, I hereby convey,” etc. This deed was duly recorded. Barton sold the land to appellants, who-had no notice that the purchase money therefor was still unpaid. Appellee is a citizen of Vigo county, Ind., and is well known therein. He also has business 'interests in Hinds-county, Miss., and is well known therein. The bill in effect alleged that appellants were put upon notice of the fact that the purchase money of said land was unpaid, and that, consequently, appellee had a vendor’s lien thereon to secure the-same, by reason of the recital, “and other considerations,” contained in the deed, and prayed that said lands be sold to satisfy the lien. To this bill a demurrer was interposed, and, to> same being overruled, an appeal was taken to- this court to-settle the principles of the case.

In Deason v. Taylor, 53 Miss. 701, the general rule governing this matter is thus stated: “Nothing is- better settled than that the purchaser of real estate is bound to take notice of all recitals in the chain of title through which his own title is derived. Not only is he bound by everything stated in the several conveyances constituting that chain, but he is bound fully to investigate and explore everything to which his attention is thereby directed.” The qualification of this general rule is as stated in 23 Am. & Eng. Ency. of Law (2d ed.) 510: “In order to impute constructive notice to a purchaser [699]*699by reason of recitals in instruments affecting his title, the recitals relied upon must be so clear and distinct as to put an ordinarily prudent person upon inquiry, and must be so far correct and intelligible that upon proper inquiry they would lead the purchaser to knowledge of the particular fact or in-cumbrance with notice of which it is sought to charge him.”

In order to uphold appellee’s contention it would be necessary for us to- hold that the recital, “other considerations,” so clearly and distinctly indicates that the purchase money of the land is probably unpaid as to cause a reasonably prudent man to make inquiry relative thereto. This we cannot do-. This-recital indicates nothing more than that there- was a consideration for the deed other than the $2,000, and does not in the remotest degree indicate that any part of the purchase money is probably unpaid. It is true that, by inquiring of appellee, appellants would have learned this fact; but the question isr Was it their duty to make such inquiry? The best reasoned case we have seen'on this subject, and which fully supports-the foregoing views, is Acer v. Westcott, 46 N. Y. 384, 1 Am. Rep. 355.

The decree of the court below is reversed, the demurrer sustained, and the bill dismissed. Reversed.

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51 So. 914, 96 Miss. 693, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spellman-v-mckeen-miss-1910.

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