
    SMIDDY et al. v. CHAPMAN.
    (No. 1422.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 8, 1915.
    Rehearing Denied March 18, 1915.)
    Vendor and Purchaser <§=>228 — Estoppel— Bona Fide Purchaser.
    Where the defendant purchased land with notice that a deed of release of a valid lien executed by a former owner and placed of record had been executed by mistake, such deed worked no estoppel in favor of defendant as against plaintiff retaining and claiming a lien upon the land.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 495-501; Dee. Dig. <§=>228.]
    Appeal from District Court, Hopkins County; Wm. Person, Judge.
    Action by W. J. Chapman against Thomas J. Smiddy and others. Judgment for plaintiff, and defendant named appeals.
    Affirmed.
    D. Thornton, of Sulphur Springs, for appellants. R. D. Allen, of Sulphur Springs, for appellee.
   HODGES, J.

The appellee, W. J. Chapman, instituted this suit in the court below against H. W. Chapman, I. J. Wallace, and the appellant Thomas J. Smiddy. The purpose of the suit was to recover a judgment against H. W. Chapman for the sum of $610.-05 due upon a promissory note, and to foreclose a vendor’s- lien as to all the parties against a tract of 45 acres of land situated in Hopkins county. In a trial before the court without a jury a judgment was rendered in favor of the appellee for the amount of the judgment prayed for and for a foreclosure of the vendor’s lien. That portion of the suit only which sought a foreclosure of the lien was resisted in the trial below.

The facts developed were substantially as follows: W. J. Chapman, S. B. Chapman, and their sister, Mrs. Minnie Page, owned 95 acres of land in Hopkins county, of which that in controversy 4s a part. They jointly sold this land to H. W. Chapman and J. E. Chapman, and took as a part of the purchase price three promissory notes for $500 each. Each of these joint owners held one of the notes, but it appears that they considered themselves as joint owners in all of them. In the early part of 1904 I-I. W. Chapman and J. E. Chapman divided the 95 acres of land between them; J. E. Chapman taking 50 acres and H. W. Chapman 45 acres. Some time later J. E. Chapman sold his 50 acres to Walter Page, the husband of Mrs. Minnie Page. Page satisfied the balance due for his land by paying a part and his wife agreeing to relinquish her interest in two of the notes held by W. J. and S. B. Chapman. The latter then became the sole owners of the two remaining notes. After having paid off the purchase money due upon his tract of land, Page desired a release of the vendor’s lien theretofore existing. It was agreed by all of the parties in interest that this deed of release should be executed, and Page, accordingly, had one prepared which was signed and acknowledged by the appellee and his brother J. E. Chapman. This deed, however, was destroyed in the burning of Page’s residence some time thereafter, and was never recorded. In order to enable Page to procure a loan, he sought and obtained another release similar to the one which had been destroyed. The scrivener who prepared the instrument, however, through a mistake drew it so that upon its face it purported to release the vendor’s lien upon the entire 95 acres. Page, without discovering this error, presented the deed to the appellee for his signature, telling him that it released the lien only upon the 50 acres which he (Page) owned. The appellee, it appears, was very busy at the time, relied upon the statement made to him by his brother-in-law, and signed and acknowledged the instrument without reading it. The deed was then sent by mail to S. B. Chapman in Oklahoma for his signature The mistake was discovered by S. B. Chapman, and the attention of Page and the appellee called to it. It was then agreed by the parties that a new deed should be executed correctly describing the land to be released. In accordance with that intention, another deed of release was prepared which purported to release the lien only upon the 50 acres owned by Page, leaving it intact upon the 45 acres which had not then been paid out. By some mistake not explained by the testimony, the erroneous deed was placed of record, instead of the one which the parties really intended should be. Subsequent to this transaction S. B. Chapman died. In November, 1912, his widow, Mrs. E. M. Chapman, joined by her children, brought suit for the balance due upon the note held by her husband. In her petition she alleged that she was the sole owner of that note, and sought a foreclosure of the vendor’s lien upon the 45 acres owned by H. W. ’Chapman and which is the land in controversy. A judgment was rendered in her favor, and at the foreclosure sale thereafter the appellant, Smiddy, became the purchaser. He now claims to hold as an innocent purchaser, by reason of the record showing the release of the original vendor’s lien on the entire 95 acres. The appellee, who at that time resided in Oklahoma, knew nothing of the existence of this suit until after the judgment had been rendered and just before the land was to be sold. He attended the sale and gave notice to the appellant, Smiddy, who was intending to purchase the land, of his lien.

There is some controversy between the parties as to just what was said between Smid-dy and.the appellee in the several conversations which occurred respecting the interest claimed by the appellee. But there was ample evidence to justify the court in concluding as a fact that Smiddy had full notice that the deed of release which had theretofore been placed of record was executed by mistake, and that the appellee still retained and claimed a lien upon the land to secure the unpaid balance due upon the note held by him. A purchase with such notice would deprive Smiddy of any right to claim an es-toppel against the appellee because of the condition of the record.

It is unnecessary to discuss the various assignments in detail, as they all present different phases of substantially the same question.

We think the testimony fully justified the court in rendering the judgment he did, and that judgment is affirmed. 
      <g=oFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     