purchaser with notice he may protect himself, under the purchase from Nelson, if the latter was a purchaser for value without notice.

The only controverted question presented by the instruction is whether the deed to Nelson is evidence of the payment by him of a valuable consideration, for there was no other evidence upon that subject. This deed recited that Nelson had paid to Lucas in hand $225,000, and contains the further statement that the grantee assumed the payment of an incumbrance on the property, evidenced by a deed of trust, amounting to $135,000, as part of the purchase price. The assumption of debt due by the grantor, it is held in New York, is a valuable consideration under the recording act of that state. Jackson v. Winslow, 9 Cow. (N. Y.) 13; 2 Pom. Eq. Jur. § 747. There was here an irrevocable agreement on the part of Nelson to pay the incumbrance, and that, of itself, constituted him a purchaser for value. The instruction was properly refused on this ground, and the question made, whether the mere recital of payment in this deed is evidence of payment, becomes an immaterial one.

Finally it is insisted that the notice to quit is defective, because it directed defendant to yield up possession on the 1st September, 1886, instead of the last day of August of that year. The rents became due on the first day of each month. The notice to quit bears date the 30th July, 1886. It begins by saying: "Pursuant to the statute in that behalf provided, I hereby give you thirty days' notice in writing of my intention to terminate your tenancy," and, after describing the premises, concludes, "and I require you to surrender up possession of said premises on the first day of September, 1886, pursuant to this notice." On the service of this notice defendant addressed plaintiff a letter saying, in substance: "I hold a lease from Mr. Lucas, which terminates May 30, 1888, and it is my intention to retain possession until that time."

Conceding, for the purposes of this case, that the notice should have required defendant to quit on the last day of the rental month, which was the last day of August, still, excepting Barclay, J., we are of the opinion that defendant waived the irregularity. Taylor says: "Although the notice be irregular in respect to the time named for its expiration, yet if the tenant, at the time of the delivery of the notice, assents to the terms of it, his assent will waive the irregularity." 2 Tayl. Landl. & Ten. § 478. Here the defendant by his letter, written on receipt of the notice, places his right to retain possession alone on the ground that he had a lease from Lucas which would not expire until 30th May, 1888. This we think was a waiver of the irregularity.

Besides this, when the notice was offered in evidence it was objected to because irrelevant, immaterial, and incompetent. No other objection was made. The 'objection made in this court is specific, and the objections made in the trial court are too general to entitle them to be heard here. The specific objections should have been made in the cir

cuit court. Shelton v. Durham, 76 Mo. 436. We see no reason for disturbing the judgment, and it is therefore affirmed.

RAY, C. J., absent. The other Judges, save as before stated, con

cur.

Complul Judgment

(B) Recitals in Title Papers

to Welleen

DEASON et al. v. TAYLOR.

(Supreme Court of Mississippi, 1876. 53 Miss. 697.)

Bill in equity by Bentonville Taylor against J. B. Deason, M. W. Hoskins, and G. W. Hoskins, her husband, Ellen McClendon and A. D. McClendon, her husband, to recover the balance of the purchase money of certain land, and to subject land to the payment of the same.

The bill showed that on February 16, 1872, the complainant sold and conveyed the land in question to J. B. Deason; the deed, which was duly recorded on February 19, 1872, reciting a consideration of "the sum of $700, to be paid to the party of the first part on_or_before the first day of July, 1872, by the party of the second part." For the purchase money Deason gave his note, of even date with the deed, as follows: "On or before the first day of July next, I promise to pay Bentonville Taylor, or bearer, the sum of $700, for town lots conveyed by him to me this day. This sum is to be paid in Mississippi state certificates of indebtedness at par." After maturity of the note, Deason sold and conveyed the lots to the defendant M. W. Hoskins, and the latter and her husband sold and conveyed the same to the defendant Ellen McClendon. When Deason sold and conveyed the lots to the defendant Hoskins, he informed her agent that he had paid Taylor all the purchase money.

The defendants demurred to the bill, on the ground that the complainant had no vendor's lien, it appearing on the face of the bill that the consideration for the sale of the lands was not money or United States currency; and because the recital in the deed was not notice to the defendants Hoskins and McClendon of the complainant's equity.

The demurrer was overruled, and an answer filed, and upon final hearing a decree was rendered for the complainant for the balance of the purchase money due him, and foreclosing his vendor's lien on the land. The defendants appeal."

CHALMERS, J. We are content with the finding of the chancellor on the facts. If any injustice was done in fixing the amount due, it

• The statement of facts is abridged.

was to the appellee, and not to the appellants. The fact that the note was dischargeable in Mississippi certificates of indebtedness. (known as Alcorn money) did not deprive it of the protection of the vendor's equitable lien. Harvey v. Kelly, 41 Miss. 490, 93 Am. Dec. 267.

In the face of the deed which Taylor executed to Deason was this recital: "The party of the first part (the vendor), for and in consideration of the sum of $700, to be paid on or before the first day of July, 1872, by the party of the second part" (the vendee), &c. For this sum of $700, Deason, the vendee, executed his note to Taylor, due 1st of July, 1872. The deed was recorded at once, and Deason took possession of the premises. Without having completed payment in full of the note, Deason sold the premises in 1874 to Hoskins, who subsequently sold to Mrs. McClendon. Both Hoskins and Mrs. McClendon deny actual knowledge, at and before their purchases, that any thing remained due to Taylor.

Did the law give them constructive notice of Taylor's rights? Nothing is better settled than that the purchaser of real estate is to of title t bound to take notice of all recitals in the chain of title through which his own title is derived. Not only is he bound by everything stated in the several conveyances constituting that chain, but he is bound fully to investigate and explore everything to which his attention is thereby directed. Where, therefore, he is informed by any of the preceding conveyances, upon which his own deed rests, that the land has been sold on a credit, he is bound to inform himself as to whether the purchase money has been paid since the execution of the deed. Wiseman v. Hutchinson, 20 Ind. 40; Croskey v. Chapman, 26 Ind. 333; Johnston v. Gwathmey, 4 Litt. (Ky.) 317, 14 Am. Dec. 135.

It is argued, however, that this principle only applies before the maturity of the notes, as shown by the recitals of the deed, and that it will not apply where, as in the case at bar, subsequent purchasers have bought after the notes were past due. It said that, in such case, the subsequent purchasers may rely upon a presumption that the original debt has been paid. We know of no principle which would justify a reliance upon such a presumption, and it is expressly negatived by the cases of Honore v. Bakewell, 6 B. Mon. (Ky.) 67, 43 Am. Dec. 147, and Thornton v. Knox, 6 B. Mon. (Ky.) 74. They may rely upon such presumption after sufficient time has elapsed to bar the notes, although, in fact, they may have been renewed. Avent v. McCorkle, 45 Miss. 221.

It appears in the case at bar that the subsequent purchasers knew that Deason had bought the realty on a credit, because they asked him at the time of their purchase if he had paid all the money due Taylor. It was their own folly if they relied upon his assurances, instead of applying for information to Taylor, who lived in an ad

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Judy

joining county, and is shown by the bill to be a practising lawyer, well known in Brookhaven, where the lots were situated and all the defendants resided. Decree affirmed.

•Reversed.

(C) Lis Pendens

HOUSTON v. TIMMERMAN.

(Supreme Court of Oregon, 1889. 17 Or. 499, 21 Pac. 1037, 4 L. R. A. 716, 11 Am. St. Rep. 848.)

LORD, J. This was a suit to partition certain lands described herein. The defendant denied that the respondent had any interest in said lands, and alleged that she was the owner in fee-simple, and entitled to the possession of the whole of said premises.

The plaintiff, in reply, denied this, and alleged affirmatively that some time in July, 1884, she commenced a suit against A. J. Houston for a divorce and alimony, and for an equal undivided one-third of the real property then owned by said Houston, and that he was the owner in fee of said real property, which was duly described therein. That the summons in said divorce suit was served on

1884, and that prior to that time and prior to the 26th day of September, 1884, the defendant Timmerman had notice that the complaint for divorce and one-third of said real property had been filed by the plaintiff against her husband. That on the 5th day of February, 1886, a decree was entered, granting a divorce in favor of the plaintiff, and adjudging her to be the owner of the undivided one-third of said real property, etc.

The court below, after a trial of said cause, rendered a decree therein, granting the prayer of plaintiff for partition, except as to the 160 acres of land mentioned therein, and partition was ordered and made on June 26, 1888, and confirmed by the court.

The defendant Timmerman derived her title to the premises in dispute in this wise: On the 15th day of March, 1880, the plaintiff's husband, A. J. Houston, for value, made and delivered his promissory note to the defendant Timmerman for the sum of $3,400, with interest at the rate of 10 per cent. per annum from date; that, the said A. J. Houston failing to pay said note, the defendant Timmerman commenced suit on the 26th day of September, 1884, and caused service of summons to be made upon him on that day, and that on October 27, 1884, the defendant Timmerman recovered judgment against the said A. J. Houston for the sum of $5,463.87, which, on the same day, was duly docketed in the judgment lien

docket, and thereupon became a lien upon all the real property mentioned in the complaint in this suit. It further appears that on March 19, 1883, said A. J. Houston made and delivered his promissory note to J. T. Williams for $1,000, with interest from date at the rate of 10 per cent. per annum, payable six months after date, and to secure the payment of the same executed a mortgage, which was duly recorded, upon the 160 acres of land set out in the complaint. The said Houston failing to pay said note, the mortgage was foreclosed against the said Houston and the plaintiff herein. The defendant Timmerman, however, answered, setting up her judgment, and asked, if the property be sold to foreclose said mortgage, that the overplus, if any, should be applied in payment of her judgment, and a decree was accordingly so entered, etc.; that execution was issued upon said decree, and said 160 acres was sold to the defendant Timmerman for $2,500; that thereafter, on May 13, 1885, execution was issued upon said judgment, and the remainder of the premises described herein was sold to the defendant Timmerman, and said sale confirmed, and deeds were duly executed by the sheriff to said defendant.

It will be noticed that the suit of the defendant Timmerman to recover the amount due on the note against A. J. Houston, who was then the husband of the plaintiff herein, was commenced after the suit of the plaintiff for divorce against her husband, and that a judgment was recovered and docketed before a decree in the divorce suit was rendered, and in which one-third of the real estate then owned by the husband was decreed the plaintiff. It is true, there was no direct proof of the date of the service of the summons in the divorce suit; buf, as this will not affect the result reached, it is immaterial. The contention is that the defendant Timmerman

was a purchaser pendente lite. There is, however, a preliminary question to be first disposed of, namely, that the appeal was not taken within six months as allowed by law. The answer to this is that the objection relates to the interlocutory or first decree, and not to the final decree, and that, as our own Code does not authorize an appeal from interlocutory judgments or decrees, but only from such as are final, and, the appeal from the final decree being within six months, there was a right of appeal, and the objection, therefore, is unavailing.

An examination of the statutes of the two states from which the authorities were read, to the effect that an appeal might be taken before a final judgment or decree was entered shows that appeals in those states may be taken from interlocutory judgments or decrees, which, not being the case under our Code, they fail on application. See Freem. Co-tenancy, §§ 519, 527.

But to return. Among the ordinances or rules adopted by Lord Chancellor Bacon "for the better and more regular administration of justice" was one which provided that, where a person "comes in THROCKM.EQ.JUR. (2D ED.)-9