Henry Wrape Company v. Cox

• Decision Date: 28 February 1916
• Docket Number: 210
• Citation: 183 S.W. 955,122 Ark. 445
• Parties: THE HENRY WRAPE COMPANY v. COX
• Court: Arkansas Supreme Court

183 S.W. 955

122 Ark. 445

THE HENRY WRAPE COMPANY v. COX

No. 210

Supreme Court of Arkansas

February 28, 1916

Appeal from White Circuit Court; J. M. Jackson, Judge; reversed.

STATEMENT BY THE COURT.

Henry Wrape Company instituted this action in ejectment against Sarah I. Cox and F. E. Cox to recover forty acres of land in White County, Arkansas. The plaintiff acquired title to the land by mesne conveyances from the State of Arkansas. The immediate grantor of the plaintiff was the Stecher Cooperage Works, a corporation. That corporation conveyed the land to the plaintiff by a quit claim deed executed on May 18, 1910. The consideration stated in the deed was $ 1 but the actual consideration paid was $ 8.50 per acre, which was an adequate price for the land.

Frank Wrape, one of the stockholders and the treasurer of the plaintiff company, testified that he was on the land just after his corporation bought it, that at that time there were no improvements on it, and that no one was in possession of it. He testified that at the time plaintiff purchased the land it was not known that the defendant Sarah I. Cox had any litigation with the Stecher Cooperage Works; that the Stecher Cooperage Works sold and conveyed to plaintiff a number of tracts of land at the time the land in controversy was conveyed, and that a warranty deed was executed for all of these lands except the forty acres in controversy and another forty acre tract; that the reason the quitclaim deed was executed to the forty acre tract in controversy was that a man named Hibbard had obtained a judgment awarding him possession of the land; that the plaintiff company did not know that the defendant claimed any interest whatever in the land; that in the early part of 1911 plaintiff sold the timber on said land to one McHale; and that in December 1911, the witness in company with McHale had a conversation with the defendant F. E. Cox, at a hotel in Bald Knob Arkansas, and that in the course of the conversation Cox informed him that his wife claimed title to the land.

McHale testified that he bought the timber on the land in controversy in the early part of 1911; that the timber on it was worth about $ 50; that he was on the land soon after he purchased it and that the land was wild and unimproved and that no one was in possession of it; that he was present at a hotel in Bald Knob in December, 1911, when Frank Wrape had a conversation with F. E. Cox concerning the title to the land in controversy and that Cox at that time said his wife claimed title to the land.

On the part of the defendant it was shown that the Stecher Cooperage Woorks filed a petition in the chancery court to confirm its title to certain lands in White County, the land in controversy being embraced in the suit, and that in December 1908, Sarah I. Cox, defendant, filed an intervention in which she claimed title to the forty acres in controversy. In December, 1911, the court found that Sarah I. Cox had been in adverse possession of said lands for more than seven years and it was decreed that the petition of the Stecher Cooperage Works as to said land be dismissed and the title of Sarah I Cox in the same be quieted as against all claims of the Stecher Cooperage Works.

Other facts will be referred to in the opinion.

The court, sitting without a jury, found for the defendants and dismissed the complaint of the plaintiff. It awarded defendants damages in the sum of $ 50.

The plaintiff appealed.

Judgment reversed and cause remanded.

Brundidge & Neely, for appellant.

Plaintiff was an innocent purchaser of the land. No notice of lis pendens was filed as required by Kirby's Digest, § 5149. Nor had plaintiff any actual notice, nor was any one in possession when it was purchased. 118 Ark. 139; 98 Ark. 109; 87 Id. 64; 75 Id. 228; 36 Law. Ed. U.S. 527; 25 Cyc. 1465.

J. N. Rachels and John E. Miller, for appellees.

1. The evidence shows conclusively that appellant was not a bona fide purchaser. 95 Ark. 586. If it purchased with actual knowledge of the pendency of litigation it cannot complain that no lis pendens notice was filed. 94 Ark. 141; 98 Id. 109. The burden of proving it was an innocent purchaser devolves upon it. 75 Ark. 228; 80 Id. 86; 103 Id. 425. The trial court has found against it on this question of fact and this court will not reverse. 92 Ark. 41; 90 Id. 494, 512; 82 Id. 188, 260.

2. Appellant can not claim to be an innocent purchaser as it held under a quitclaim deed, which charges notice. 50 Ark. 322; 103 Id. 429; 23 Id. 735; 145 U.S. 492; 29 L. R. A. 34; 63 S.E. 180; 162 Mich. 585; 139 S.W. 384; 145 Id. 1041; 69 Wash. 386.

OPINION

HART, J. (after stating the facts.)

(1) In this state a quitclaim deed is a substantive form of conveyance and a party holding under such deed may be entitled to protection as an innocent purchaser. Brown v. Nelms, 86 Ark. 368, 112 S.W. 373, and cases cited. See also McDonald v. Belding, 145 U.S. 492, 36 L.Ed. 788, 12 S.Ct. 892.

The common law and equity rule of lis pendens has been abrogated in this state by statute. Since the passage of the statute a suit affecting the title or any lien on real estate is not lis pendens until a notice of the pendency of the action is filed in accordance with the statute. Steele v. Robertson, 75 Ark. 228, 87 S.W. 117; Hudgins v. Schultice, 118 Ark. 139, 175 S.W. 526.

In the case before us there was no notice of the pendency of the suit filed as required by section 5149 of Kirby's Digest. Therefore, under the authorities above referred to, 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. See also, Marchbanks v. Banks, 44 Ark. 48...