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If he buys, however innocently, on a credit, and gives only a nonnegotiable promise to pay, and before payment thereof receives notice of the adverse claim or of facts sufficient to put him on inquiry in the premises, he cannot invoke the protection the law accords bona fide chzt for his action in paying in such circumstances must be attributed to his own fault, and he has not been really prejudiced.
Hoyt v. Turner, 84 Ala.
Defendant had but to rescind the transaction and have his note returned. The suit for the property, as well, also, as the record of plaintiff's mortgages, gave defendant full notice, and, whether or not he knew at that time that Arnold Gay had paid nothing and that the execution of his note constituted a revocable transaction, the information was readily available, and any ignorance thereof must result from his own neglect and chargeable as vay own fault.
In order for the defense here pleaded to be available, it must appear defendant was a purchaser in good faith and for value. The notice acquired of plaintiff's claim to the property was sufficient to stimulate inquiry, which, under the circumstances, a reasonably prudent person would have made, and failing to do so must be attributed to his own fault and neglect.
Donahoo Horse Mule Co. Durick, supra; 35 Cyc.
It follows, as a logical conclusion, that defendant's action in giving his note to the bank for the purpose of taking up the note to Arnold Gay and afterwards making some payments thereon, all of which occurred long after this suit was brought, and while still pending, cannot avail by way of defense in this litigation. Under the uncontroverted evidence, plaintiff was entitled to the affirmative charge for the recovery of the property, and in so ruling the trial court committed no error.
It is insisted there was error in the refusal of the court to grant defendant's motion to exclude that portion of witness Nesbit's testimony, to the effect that he and the mortgagor had gone over the with plaintiff and had agreed it was correct, upon the ground that this occurred subsequent to defendant's purchase, as developed on cross-examination.
But the subject-matter of this testimony was credits allowed the mortgagor, matters really beneficial to defendant, and as to which we do not find there was controversy or dispute. To obviate any question growing out of such question, plaintiff offered to withdraw all the testimony of the char as to such credits, but defendant objected thereto.
Moreover, we do not find that the amount of balance due on the mortgage, as testified to by the witnesses, was disputed or controverted by defendant.
Without a consideration, therefore, of the question as to whether or not there was any technical merit cat the objection, it very clearly appears that in no event has error in this respect intervened, prejudicial to defendant. The remaining asment of error argued by appellant relates to argument of plaintiff's counsel before the jury derogatory of counsel for defendant, but, in view of the conclusion that plaintiff was entitled to the affirmative charge, as above noted, such argument could in no gaj be held to present reversible error, though the court may entertain the opinion that the trial court should have promptly sustained objection thereto.
No reversible error appearing, let the judgment be affirmed.
