Hollabaugh v. Taylor
| Decision Date | 03 June 1918 |
| Docket Number | 25 |
| Citation | 204 S.W. 628,134 Ark. 415 |
| Parties | HOLLABAUGH v. TAYLOR |
| Court | Arkansas Supreme Court |
Appeal from Searcy Chancery Court; Ben F. McMahan, Chancellor affirmed.
Decree affirmed.
S. W Woods, for appellant; J. F. Henley and W. F. Reeves, of counsel.
1. The check, deed and abstract of title took the transaction out of the statute of frauds. Each party had the right to specific performance the same as if the contract of sale had been in writing. 10 R. C. L. 629, § 11; 1 Devlin on Deeds, 549 552, § 328 (3 ed.); 18 L. R. A. (N. S.) 337; 21 S.W 538; 81 Am. St. 201; 43 L. R. A. (N. S.) 390; 30 Ark. 61; 102 Id. 377.
2. The abstract was delivered in time. 3 Devlin on Deeds, § 1541.
3. The abstract shows that appellant had a marketable title. The deeds to McCasland were void and no cloud on the title. 5 R C. L. 661, § 33; 3 Devlin on Deeds (3 ed.), § 1480; 37 Ark. 643; 20 Id. 579; 55 Id. 549; 85 Id. 4; 77 Id. 527; 87 Id. 85. If there were any defects in the title, Taylor should have pointed them out, and having failed to do so, he is not in position to litigate them on the trial. 31 Ark. 151; 22 Id. 435; 23 Id. 147; 68 Id. 215.
4. It was error to refuse to allow appellant to withdraw and amend his abstract of title. Time was not of the essence of the contract and a reasonable time should have been allowed to appellant to show that he had procured deeds from the widow and heirs of McCasland. 103 Ark. 212; 120 Id. 69; 126 Id. 498; 36 Cyc. 627-8.
Geo. J. Crump, for appellee; A. Y. Barr and Geo. Crump, Jr., of counsel.
1. It was an oral contract of sale of lands and void under the statute of frauds. The check, deed and abstract did not take the case out of the statute. The money was not paid in escrow and the check was not irrevocable. 89 Ark. 193.
2. Appellant did not have a merchantable title. The opinion of the attorney shows this. 120 Ark. 76; 73 Id. 494. A deed from the widow and heirs of McCasland was necessary at least. None of the cases cited by appellant sustain the position of appellant.
3. There was no error in refusing to allow appellant to withdraw and amend his abstract. The decree took effect from the time it was rendered, not from the time it was entered. 108 Ark. 527. It was a matter within the sound discretion of the court. He was too late.
STATEMENT OF FACTS.
On March 21, 1917, Hollabaugh made an oral contract with Taylor by which he sold Taylor two tracts of land, one containing 15 acres and the other 16 1/2, for the sum of $ 4,500. Taylor carried a large deposit at the First National Bank of Marshall, in Searcy County, where the lands were situated. Taylor drew a check for the purchase money and delivered it to A. T. Hudspeth, cashier of the bank, with directions to deliver the check to Hollabaugh when Hollabaugh delivered to Hudspeth for Taylor a deed and abstract of the title to the lands. On the same day Hollabaugh executed a warranty deed for the lands and delivered it to Hudspeth for Taylor, and employed one Morris, an abstracter, to make an abstract of title. On delivery of the deed Hudspeth delivered the check to Hollabaugh, who deposited it with the bank, and the check was marked paid. Hollabaugh also employed Eva B. Griffin to make an abstract of title to said lands. Both abstracts were completed and delivered to the bank for Taylor, who employed A. Y. Barr, an attorney of recognized ability and standing, to examine the abstract and prepare an opinion. The abstracts were delivered to Barr on April 25, and he submitted a written opinion on the title under date of April 30. Objection was made in the opinion to the title to one of the tracts on account of a defective description appearing in some of the deeds in the chain of title; but this objection appears to have been remedied.
As to the other tract Barr advised that certain quitclaim deeds were necessary to perfect the title. This objection was based upon the existence of deeds from McBride, Sooter and Stephenson to J. B. McCasland; but Hollabaugh was advised by his attorney that these deeds were void and that it appeared from their face that they did not constitute a cloud on the title. Taylor declined to accept the deed and brought suit against the bank for the full amount of his deposit. The bank answered that the $ 4,500 had been credited to the account of Hollabaugh and that the proceeds of this check were so held by it. It prayed the direction of the court as to the disposition it should make of this money. Hollabaugh intervened in this suit and alleged that he was a necessary party to a full and final settlement of the issues involved. He set up the facts above recited and alleged that he had tendered Taylor a marketable title to the land contracted to be sold and he prayed a specific performance of that contract, and that the cause be transferred to equity where the relief could be granted to which he was entitled. The cause was transferred to equity, and upon the trial there the court found the fact to be that the title tendered was not a merchantable one and dismissed the complaint as being without equity, and this appeal has been prosecuted to reverse that decree. Other facts will be stated in the opinion.
OPINIONSMITH, J., (after stating the facts).
It is contended that a suit for the specific performance of the contract can not be maintained for the reason that the contract was not reduced to writing. But it sufficiently answers this objection to say that a check for the purchase money was given, an abstract of title was furnished and a deed executed and placed in escrow. This action took the case out of the operation of the statute of frauds. Barr v. Johnson, 102 Ark. 377, 144 S.W. 527; Moore, Keppel & Co. v. Ward, 71 W.Va. 393, 76 S.E. 807, 43 L. R. A. (N. S.) 390; Lewis v. Prather, 14 Ky. L. Rep. 749, 21 S.W. 538; Manning v. Foster, 49 Wash. 541, 96 P. 233, 18 L. R. A. (N. S.) 337; Devlin on Deeds, vol. 1, pp. 549 to 552; Ruling Case Law, vol. 10, p. 629, § 11.
It is also insisted that the abstract of title was not delivered to the bank within the time agreed upon. But Hollabaugh and Hudspeth testified otherwise, and the court found against appellee on this point, and further found that time was not of the essence of the contract, and we think the evidence supports that finding.
The deeds which are alleged to cast a cloud upon the title are these: (1) A deed from John S. Stephenson to J. B. McCasland dated April 3, 1903. This deed contains a recital that it "is given in lieu of a former deed from J. W. Henley and wife to John B. Stephenson, said deed having been...
To continue reading
Request your trial