Dalton v. Lybarger

• Court: Arkansas Supreme Court
• Writing for the Court: HUMPHREYS, J.
• Citation: Dalton v. Lybarger, 237 S.W. 694, 152 Ark. 192 (Ark. 1922)
• Decision Date: 20 February 1922
• Docket Number: 175
• Parties: DALTON v. LYBARGER

237 S.W. 694

152 Ark. 192

DALTON v. LYBARGER

No. 175

Supreme Court of Arkansas

February 20, 1922

Appeal from Washington Chancery Court; B. F. McMahan, Chancellor reversed.

Decree reversed, and cause remanded.

E B. Wall, for appellant.

The title tendered by plaintiffs is a title by limitation whereas, the one called for by the contract was a record marketable title. Appellant was not obligated to accept anything less than the title contracted for. See 121 Ark. 482 and 120 Ark. 69.

H L. Pearson and John Mayes, for appellee.

By a "clear record title," it is not meant that there shall be an unbroken chain of conveyances from the Government down to the vendor. 120 Ark. 76. The title tendered by appellee was a good one as held by the chancellor, and his decree should be affirmed.

OPINION

HUMPHREYS, J.

Appellant and appellees entered into a written contract for the sale and purchase of certain real estate and personal property. Appellees instituted suit for specific performance of the contract. Appellant answered that all the personal property covered by the contract had not been delivered to him, and that the part which had been delivered to him was in bad condition; and, by way of cross-complaint, asked for damages and for specific performance of the contract. Appellant was awarded $ 200 as damages, and a specific performance of the contract was decreed, and the decree, following the contract in reference to the character of title contracted for, ordered appellees to convey the lands to appellant by good and sufficient warranty deed and to furnish abstract of title to all of said described lands showing good and merchantable title thereto. The decree was entered February 28, 1920, and no appeal was prayed by either party therefrom. Before the rendition of the decree appellant had taken possession of the lands and personal property and had had an opportunity to inspect the abstracts, which were placed in escrow, but had not done so. Subsequent to the rendition of the decree appellees tendered deeds and an abstract for the lands to appellant, which appellant refused to accept upon the ground that the abstract did not show a perfect record title to the lands. Exceptions were filed to the title, showing record breaks in the chain of title. Appellees attempted to meet the objections and exceptions to the title tendered, by proceedings in the chancery court of Washington County to quiet the title to the lands. They obtained two decrees in suits instituted for that purpose. The first decree was entered by nunc pro tunc order as of the 16th day of August, 1920, and the second on April 19, 1921. The trial court held that the first decree did not cure all the defects in the title, but held that the second decree did cure the defects alleged in the title, and was a full compliance with the requirement in the contract and decree for a specific performance to furnish appellant an abstract showing a good and marketable title to said lands. One of the objections and exceptions of appellant to the last decree, attempting to cure the record defects in the title, was that it was not impervious to attack upon proper showing until three years after its rendition. The court overruled this and other objections and exceptions to the title, holding that the amendment to the abstract, incorporating the decree quieting title to the lands, rendered the title good and marketable under the terms of the contract for sale and the decree for specific performance, and rendered a decree accordingly, from which is this appeal.

The first question to be determined on this appeal is whether the decree quieting the title, of date April 19, 1921, converted the defective record title into a good record title. The purpose of the decree, of course, was to cure all defects in the chain of title, but the decree itself, under the statute was not impervious to attack for three years. Crawford & Moses' Digest, § 8370. Until the decree itself became effective by limitation, it could not have...