Cunningham v. Toye , 97 Ark. 537 ( 1911 )

Wood, J.,

(after stating the facts). The only question necessary to decide is whether or not appellant was an innocent purchaser fot value. Appellant testified that he purchased the notes in the ordinary course of business, giving in payment therefor an automobile worth five or six hundred dollars, that at the date of the purchase he knew nothing about Dunn’s outstanding notes for the purchase of the lot from Ratterree. He further testified that Dunn offered to sell him the lot before he sold same to Mrs. Toye, but that he wanted something on which he could realize immediately. He considered the automobile as good as the lot. Dunn, on the other hand, testified that he told appellant at the time the notes were assigned to him that he still owed his notes on the purchase price. He further testified that the automobile that he received in payment for the notes was worth from $125 -to $200; that he could not sell it for $200. It was merely a question of fact as to whether appellant purchased the notes from Dunn without notice of the equities between Dunn and appellee. Unless there is a clear preponderance of the evidence against the findings of the chancellor, this court will not set them aside. Hinkle v. Broadwater, 73 Ark. 489; Brown v. Wyandotte & Southeastern Ry. Co., 68 Ark. 134; Farmer v. First National Bank, 89 Ark. 132.

The testimony seems to be evenly balanced. In such case the finding of the chancellor must be sustained. Litchworth v. Vaughan, 77 Ark. 305. The preponderance must be against the finding of facts by the ohancellor, or else such finding must be upheld. Norman v. Pugh, 75 Ark. 52; J. H. McGill Lumber Co. v. Lane-White Lumber Co., 90 Ark. 426. See also Goerke v. Rodgers, 75 Ark. 72. The chancellor therefore did not err in holding that appellee was not an innocent purchaser.

It is suggested that appellant should be believed in preference to Dunn because Dunn is seeking to shift his legal liabilities on appellant. But Dunn was under the same liability after he gave his testimony as he was before. His testimony did not.tend to relieve him of any liability. He was still liable for the unpaid purchase money notes he had executed. Taking the testimony of Dunn as true, as the chancellor found, then appellant knew when he purchased the notes from Dunn that the latter was under obligation to pay off the notes he had given in order to get a title himself, and that he was bound to make appellee a title. He took the assignment of the notes for the purchase money knowing that the assignor and payee was under obligation to make title to the lot when the notes were paid. As assignee with notice, he took the notes burdened with this obligation, and had to fulfill it before he could collect the notes. See Smith v. Henry, 7 Ark. 207; Sorrells v. McHenry, 38 Ark. 133. This was in effect the chancellor’s decree.

No affirmative relief is asked by appellant against Dunn.

The decree is affirmed.