concurrence">Paul Ward, Associate Justice,

concurring. I am writing this concurrence to save for future consideration a point of law which the majority opinion does not mention. This question of law may be briefly stated as follows: Shall the grantee of real estate take notice, under any circumstance, of a forged deed which appears in his chain of title?

To better understand the point which I wish to make in this concurrence it will help to set forth the following brief statement of facts.

Eunice Woods owned the lands here in question prior to 1929; on March 2,1929, there appeared of record a mineral deed (apparently) executed by Woods conveying a y2 interest in mineral rights to J. H. Bellis; in 1947 Woods conveyed the land to S. L. Boland (appellant) by warranty deed showing no exceptions to the full fee; when Boland bought the land and the abstract was delivered to him he had the abstract examined by an attorney of his choice. Eleven years later Bolánd instituted this action to cancel the said mineral deed on the ground that it was a forgery.

The majority opinion reverses the case under the rule in Werbe v. Holt, but did not discuss the question which I have mentioned above. It is my distinct understanding that the majority opinion makes no attempt to decide one way or the other the aforementioned question. It is with that understanding that I now concur and do not dissent.

I fully recognize and readily agree that the forged mineral deed (if it was forged) constituted no constructive notice to Woods as long as he held the land. If this were not true then Woods would be forced to search the records periodically to see if there was anything of record affecting his title. However in this case, when Boland bought the land in 1947 and had his abstract examined he could have, by the exercise of ordinary care, found the mineral deed as a cloud on his fee title. At that time he had a right to bring an action to set aside that cloud. That right however should not, for practical reasons, exist forever. It must follow therefore that he could lose this right under one of several statutes of limitations, none of which extend for a period of more than seven years. In this instance he waited eleven years and thereby, I think, lost his right to maintain this action.

I have been unable to find where this exact point of law has been considered in any of our opinions. However there is support for my view in other jurisdictions. In the case of Duphhorne v. Moore, 82 Kan. 159, 107 P. 791, the court was concerned with setting aside a deed induced by fraud and the court said: “For the purpose of setting the statute of limitations in operation, the fraud is deemed to be discovered whenever it is discoverable by the exercise of the diligence reasonably to be expected of one in the position of the person defrauded under all the circumstances.”

Applying the reasoning in the above cited case only one result can be reached under the facts and circumstances in this case. .If Boland had exercised the slightest diligence he would have discovered that a mineral deed had been executed some twenty-five years previously; he must have known that there was a chance that his fee was likely to be impaired; he must be charged with lack of diligence when he paid Woods the full purchase price for the full fee knowing that he might not be getting % of the mineral rights. Therefore it is unreasonable and impractical to say that Boland did not have some kind of notice, or to say that this notice did not set in motion the statute of limitations.

Sam Robinson, Associate Justice, concurring. I concur for the purpose of pointing out that as I understand it, this case is decided here strictly on a point of procedure, in which we adhere to the rule announced in Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225. The Court does not reach the point of whether Boland, under all the circumstances, is barred by the principle of laches from proving the deed from Woods to Boland is a forgery.

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