#### Cupp v. Cady.

4-3825

Opinion delivered April 22, 1935.

E. A. Williams, for appellant.

J. W. Johnston and James 8. Merriclc, for appellee.

Smith, J.

This appeal involves the title to a lot 100 by 150 feet, which ivas a part of a larger tract of land owned on May 27, 1921, by George C. Martin. On that date Martin signed a deed of trust conveying the entire tract, of which the lot Avas a part, to secure the payment, of his note due to the NeAV England Securities Company, but the instrument Avas not acknowledged until August 10, 1921, on Aidiich last-mentioned date it Avas acknoAAdedged and filed for record.

On July 28, 1921, Martin conveyed the lot to T. A. Fiser, Avho did not place his deed to the lot of record until March 6, 1924. But on this last date Avhen the deed to Fiser Avas placed of record there Avas also filed for record a mortgage from Fiser conveying this lot to the Bank of Morrilton, Avhich title Avas acquired through foreclosure proceedings by W. E. Cupp.

On January 16, 1928, suit Avas begun by the trustee for the NeAV England Securities Company to foreclose the deed of trust from George C. Martin aboAm referred to, and a lis pendens notice Avas filed and recorded. Mrs. Mary E. Wells Cady became the purchaser under the decree foreclosing this deed of trust, and recei\*ed the commissioner’s deed on September 20, 1928, AAdjich Avas duly approved by the court,

*701On June 14,1933, Mrs. Cady brought this suit against Cupp in ejectment, based upon this commissioner’s deed, to recover possession of the lot, and from a judgment in her favor is this appeal.

The deed from Martin to Fiser was executed July 28,1921, although it was not recorded until March 6,1924. The testimony shows, however, that Fiser began placing lumber on the lots to build a storehouse as soon as he received the deed, and that all of the building material, of a value of $1,039.49, had been placed on the lot, and the construction of the building Avas in progress before the deed of trust to the Securities Company had been recorded. The building Avas not completed, however, until after the deed of trust had been recorded.

The case of Whittington v. Flint, 43 Ark. 504, is cited for the affirmance of the judgment of the court beloAv. In that case it Avas held (to quote the 4th headnote) that: “Possession of the mortgagor, or his privies, including his grantees Avith notice, will not be adAmrse, nor bar an action by the mortgagee for foreclosure, or for possession of the land, unless there has been an open and explicit disavoAval and disclaimer of holding under the mort•gagee’s title, and assertion of title in the holder brought home to the mortgagee. The mere taking possession by the vendee of the mortgagor, and continued occupancy by him and his vendees for the period of the statutory-bar, their open control and improvement of the land, and payment of taxes thereon as their oavh absolute property, with the intention of holding it against all comers, Avill not bar the action. ’ ’

We do not intend in any manner to impair the authority of that case; but Ave do not think it is controlling here. Fiser entered upon, and Avas in actual possession of, the lot before the deed of trust Avas filed for record, and this actual possession Avas notice to the mortgagee whose mortgage Avas subsequently7 recorded and all others that the occupant of the lot was claiming an interest therein. This interest Avas acquired under a deed executed before the deed of trust AA7as recorded, pursuant to Avhieh deed Fiser had taken possession. Hughes Bros. v. Redus, 90 Ark. 149, 118 S. W. 414; American Bldg. & Loan Ass’n v. *702 Warren, 101 Ark. 163, 141 S. W. 765; First Nat. Bank v. Gray, 168 Ark. 12, 268 S. W. 616. There is therefore no presumption that Fiser and those claiming under him held in subordination to the deed of trust, because Fiser had purchased the lot and entered into its possession before the deed of trust was recorded, and, as a matter of fact, without knowledge of its existence. This possession has been continuous and adverse since it began, and was not broken by the suit to foreclose the deed of trust to the Securities Company, a proceeding to which Fiser was not made a party.

The actual possession of Cupp and his predecessors in title is undisputed for a period of much more than seven years before the institution of this suit, and, as this possession has been in hostility to the deed of trust and not subordinate thereto, judgment should have been rendered in Cupp’s favor, and the contrary judgment will be reversed, and the cause remanded, with direction to dismiss appellee’s suit for the recovery of the possession of the lot.