#### BUCK et al. v. MARTIN et al.

Purchase without Notice — What plea or answer must state, etc. — In. setting up a bona fide purchase without notice, the plea or answer must state, briefly, the contents of the deed of purchase; that the vendor was seized in fee and in possession; the consideration must ho stated with a distinct averment that it was bona fide and truly paid, independently of the recital in the deed. Notice must he denied previous to, and down to the time of paying the money and the delivery of the deed, and, if notice is specially charged, the denial must he of all the circumstances referred to from which notice can be inferred, and it must show how the grantor acquired title.

What the title must be. — The title purchased must he apparently perfect — good at law — a vested estate in foe simple — it must he a regular conveyance.

APPEAL FROM JEFFERSON CIRCUIT COURT.

Hon. Henry 13. Morse, Circuit Judge.

Wasscll & Moore and Bell & Carlton, for Appellants.

We submit that, as appellants had no notice of the liens whep the case was tried, the appellee’s equitable lien could not be enforced against him, -an innocent purchaser, without notice. Shall vs. Biscoe, 18 Ark. 142 ;■ Scott vs. Orlnson, 21 ■ Ark. 202.

McClure, C. J.

In January, of 1867, Lucy J. Martin, by her deed of that date, conveyed to one Thomas A. Hinton, (who is also a party defendant to this suit) certain property in the town of Pine Bluff. The consideration, named in said conveyance, is a certain forty acres of land described in said deed and one note, at twelve months, for two hundred and fifty dollars, signed by said Hinton. The complaint, of Lucy J. Martin, alleges that on the 19th day of February, 1867, the said Hinton, by a mortgage deed, conveyed said lands to the defendant, John L. Buck, to secure the payment of certain sums of money in said mortgage deed mentioned. That said mortgage deed was filed, for record, subsequent to the filing of the deed from the complainant to Hinton, and that said mortgage deed recites that there was due and payable on said *7Pine Bluff property, tbe sum of two hundred and fifty dollars, with interest, etc. Tbe bill concludes with a prayer for ■the amount of said note and interest, and that said land be sold to satisfy tbe same, etc..

Jobn L. Buck is tbe only one of tbe defendants who made answer in tbe court below. In bis answer be alleges that, about tbe 19th day of February, 1867, said Hinton applied to him to borrow certain moneys, and offered to execute to said respondent, (Buck) a deed of mortgage, on tbe Pine Bluff" property, to secure tbe same. That be inquired as to title, and was informed by said Hinton that be bad an absolute deed to said lot, given in exchange for other land; that Hinton was in possession, and, on examining tbe records, be could not find. tbe deed, and therefore relied on tbe statements of said Hinton, and, having no information or notice of said conrplainant’s claim or pretended lien, accepted said deed of trust in good faith and without any notice whatever of complainant’s equity or lien, and denies that she bad any; that when said ■sum of money, secured by said deed of trust, matured, and tbe •same being unpaid, said lots of land were sold under tbe provisions of said deed, and tbe respondent became tbe purehaser; that be is in possession under said deed of purchase, •and that be is a purchaser for a valuable consideration without notice and entitled to tbe protection of tbe court, etc.

At tbe bearing below, tbe complaint was decreed to be taken as confessed as to all of tbe defendants, save John L. Buck. The court further decreed a vendor’s lien upon tbe land, hereinbefore mentioned, for $289 00, and ordered that ■tbe same be sold in default of payment. From this decree, Buck appealed to this court.

Tbe question presented is, does tbe response of Buck show him to be an innocent purchaser? Tbe rule laid down by'the Supreme Court of the United States, in tbe case of Boone vs. Chiles (10 Feters, 177), was, that “in setting up a bona fide purchase without notice,' by plea or answer, it must state tbe deed of purchase, tbe date, parties and contents briefly; that *8the vendor zoas seised in fee and in possession; the consideration must he stated with a distinct averment that it was bona fide and truly paid, independently of the recital in the deed. Notice must be denied previous to, and doion to the time of paying the money, and the delivery of the deed, and if notice is-specially charged, the denial must be of all the circumstances referred, to, from which notice can be inferred; and the answer or plea must show hoto the grantdr acquired title; the title purchased must be apparently perfect; good at law; a vested' estate in fee simple. It must be a regular conveyance; for the purchaser of an equitable title holds it subject to the equities upon it in the hands of the vendor.” Does the respondent, Buck, bring himself within this rule? Ve think not.

The complaint alleges that the deed from Mrs. Martin to-Hinton recites the non-payment of two hundred and-fifty dollars of the purchase money; it also alleges that the deed of mortgage, from Hinton to Buck, recites the non-payment of two hundred’ and fifty dollars of the purchase money. These are allegations charging notice of the existence of the-lien of the vendor. -The only denial Buck makes of this charge is, that he examined the record and found no deed from Mrs. Martiu to Hinton, and because he found no such deed, that he relied on Hinton’s statements as to title; but there is no denial that the deed of mortgage, from Hinton to himself, does not recite the non-payment of the two hundred and fifty dollars. If such a recital existed in the mortgage, it is apparent that he had notice of the existence of the vendor’s lien. In the absence of any deed irpon record from Mrs. Martin to Hinton, it is but natural that he, as a prudent man, examined the deed itself; if he did, then the deed was notice to him of the non-payment of a part of the purchase money. But be this as it may, if he expects to rely upon the fact of being an innocent purchaser, he must bring himself within the rule. - To do this, he was bound to plead the deed from Mrs. Martin to Hinton. Had he done this, he would have pleaded notice to himself; had he pleaded the deed of *9mortgage from Hinton to himself, and this he was bound to do to bring himself within the rule, the fact would have become apparent that he had notice at the time he took his mortgage. If the deed had acknowledged the entire payment of the purchase money, and the mortgage had made-no allusion to the two hundred and fifty dollars due to Mrs. Martin, and he had, pleaded these things, he then would have stood before this court in the light of an innocent púrchaser. Where one relies upon protection on the ground of being ¿n innocent purchaser without notice, it is incumbent on' him, who sets it up, to establish a legal title in his vendor; If, however, in doing this, he purchases an equity in some one else, he cannot plead his ignorance of that equity, to establish the fact that he is a purchaser without notice. In this case notice is specially charged; there is no denial óf the circumstances referred to, in the complaint, or is there anything in the answer, showing title in either Buck or his vendor. No vested estate in fee simple has been: 'shown to exist in Hinton, which ‘did not also show that the purchase money had not all been paid. For these reasons, and finding no error in the proceedings of the court below, the judgment is affirmed.