Dill v. Snodgress

• Decision Date: 24 May 1948
• Docket Number: 4-8521
• Citation: 211 S.W.2d 440,213 Ark. 526
• Parties: Dill, Trustee, v. Snodgress
• Court: Arkansas Supreme Court

211 S.W.2d 440

213 Ark. 526

Dill, Trustee, v. Snodgress

No. 4-8521

Supreme Court of Arkansas

May 24, 1948

Appeal from Pulaski Chancery Court; Frank H. Dodge, Chancellor.

Affirmed.

Tilghman E. Dixon and Wm. J. Kirby, for appellant.

A F. House, for appellee.

OPINION

Griffin Smith, Chief Justice.

The controversy involves title to approximately seven and a half acres of unimproved land within the corporate limits of Little Rock.

In October 1923 the then owner, Ella Lurtey, contracted a sale to W. M. McNutt. Approximately nine years later McNutt assigned his contract to Fred A. Snodgress for a cash consideration of $ 300. At the time this assignment was made -- June 9, 1924 -- McNutt and his wife, by deed, conveyed their equity to Snodgress, and the deed was recorded. The Lurtey contract obligated the owner to execute a warranty deed to McNutt when $ 2,200 had been paid.

July 26, 1924, Snodgress deeded the property to Mark and Viola Owens, husband and wife, and this deed was recorded. Finding that they would be unable to discharge their obligations to Snodgress, the grantees reconveyed to him by deed of July 9, 1925. This instrument was not recorded. Thereafter Snodgress paid on the Lurtey obligation until total credits aggregated $ 1,759.36. Altogether, taxes included, he had paid $ 2,500.

Snodgress testified that Ella Lurtey left Little Rock without giving him a forwarding address, and that he did not know where she was. He owed three or four hundred dollars, but the debt was barred by limitation.

S. L. Dill is engaged in the real estate business, and testified that for a year or more he had been interested in the property and had tried to get in touch with the owner. Through his attorney, Tilghman Dixon, he succeeded in locating Viola Owens in California at Pasadena, (her husband having died). Mrs. Owens' California attorney -- Morton H. Eddy -- finally wrote that his client would execute a quitclaim deed for $ 100.

Dill says that in purchasing the property he was representing family interests, including his father, mother, a brother, and himself; hence it was sought to put the title in him as trustee. Dill admitted that before attempting to find Mrs. Owens he went to Snodgress' office and asked where Mrs. Owens could be found. Snodgress, according to Dill, told him that he (Snodgress) was the owner, Dill adding, "But according to the record I couldn't find where it was indicated. I also told [Snodgress] that if he could offer any evidence of ownership, I would make an attempt to trade with him; and that is as far as I would go." Dill's attorney asked, "Did you tell [Snodgress] that if he had a deed of any kind to produce it?" Answer: "I told him if he could show he was the owner I would be glad to try and work out a trade with him." Question: "And he did not, at any time, show you a deed or any instrument of any kind?" Answer: "No, sir; I have never seen a deed from Mr. Snodgress yet myself." Later Dill testified he was told Snodgress had a deed from Owens.

Snodgress testified that he had practiced law in Little Rock for thirty-five years and was owner of the property in question. He identified the various documents to which reference has been made, and verified signatures. Dill called at his office at least three times to discuss buying the property, and mentioned the matter once or twice on the street. The witness said he told Dill there was a balance due Mrs. Lurtey; that she was dead, or her address was unknown. Dill's plan was to plat the property. He was shown a file disclosing delinquent tax obligations. In this file there were three deeds, including the one from Mark and Viola Owens that had not been recorded; and, said Snodgress, "I showed [Dill] the deed and told him about the trouble I was having with Mrs. Lurtey."

After Dill's conversation with Snodgress he met a son of Viola Owens, who was temporarily in North Little Rock. At this time the California address had not been ascertained, or, if it had been, Mrs. Owens was not willing to sell. This is shown by an Eddy-to-Dixon letter, in which Eddy said he had talked with a daughter of Mrs. Owens, ". . . who told me her mother desired to do nothing. I, frankly, do not understand her attitude, but that is her present conclusion. I told the daughter she might as well sign the quitclaim deed and let you handle the rest." This letter was dated June 6, 1947, and refers to a communication from Dixon dated May 13th.

Appellee's counsel argues that something said to Mrs. Owens' son by Dill or those representing him must have been persuasive, and that the son communicated with his mother, for on June 24th Eddy telegraphed Dixon that Mrs. Owens had just informed him she would sell for $ 100. The deed, seemingly, had been prepared in Little Rock and forwarded to Pasadena. Dill caused it to be recorded July 1, 1947.

It will thus be seen that Dill as trustee claims under a quitclaim deed executed by one of two persons, and that ownership of the land, prima facie, was in Mark and Viola Owens, to whom Snodgress had conveyed by deed duly recorded; while upon the other hand Snodgress held a deed from Mark and Viola Owens, executed prior to Viola's quitclaim to Dill; but this deed had not been recorded.

Since occupancy by Snodgress was at one time actual, (a dilapidated house having been destroyed) the question is one of fact: Did evidence submitted by Snodgress preponderate in favor of his contention that Dill had actual notice of his interest? In The Henry Wrape Co. v. Cox, 122 Ark. 445, 183 S.W. 955, it was said that "if the plaintiff took the quitclaim deed from its immediate grantor without notice of an outstanding conveyance or obligation respecting the property, or notice of facts which, if followed up, would have led to knowledge of such outstanding conveyance or equity, it was entitled to protection as a bona fide purchaser upon showing that the consideration stipulated had been paid, and that such consideration was a fair price for the claim or interest designated."

While an unrecorded mortgage is not a lien on the property as against a stranger -- Sims v. Petree, 206 Ark. 1023, 178 S.W.2d 1016 (cited in Primm v Farrell-Cooper Lumber Co., 210 Ark. 699, 197 S.W.2d 557) -- and this is true although there may have been actual knowledge of the existence of the mortgage, the same rule does not protect one who, with notice that the record owner of property has conveyed it, procures from such owner a quitclaim deed; and this governs in the case at bar, where the price paid was only a twentieth of actual...