It appears that Pierson executed a note to Ormond Shores, Incorporated, as a portion of the purchase price of described land, that the note was transferred to the East Coast Bank Trust Company; that the maker made a partial payment on the note and renewed it to the bank and trust company April 17, 1926. The note was again renewed January 17, 1927 and this action is brought on such second renewal note. Judgment was rendered for the defendant and the plaintiff took writ of error.
There is testimony adduced under a plea that Ira Embry, an officer of the Ormond Shores, Inc., represented to Pierson that the title to the property for which the note was executed was free and clear and absolutely unencumbered *Page 1285
by a mortgage and that such false representation was again made to Pierson by Ira Embry who was president of the East Coast Bank Trust Company when Pierson renewed the note to the latter company, April 17, 1926. But it also appears that the note sued on was a second renewal note executed January 17, 1927, by Pierson and a payment was made on such renewal note. There was no misrepresentation as to the title to the land when the note was again renewed. The mortgage incumbrance of the land was duly recorded when the first note was given which was constructive notice to the purchaser, the maker of the note. Even if the misrepresentation was a defense to the note when the mortgage was of record accessible to the purchaser, the giving of the second renewal note when there was no misrepresentation, was a waiver of the defense. Padgett vs. Lewis,
Reversed.
TERRELL AND DAVIS, J.J., concur.
BUFORD, C.J., AND BROWN, J., concur in the opinion and judgment.
