Meek v. Green

• Court: Arkansas Supreme Court
• Writing for the Court: HART, J.
• Citation: Meek v. Green, 166 Ark. 436, 266 S.W. 451 (Ark. 1924)
• Decision Date: 10 November 1924
• Docket Number: 228
• Parties: MEEK v. GREEN

266 S.W. 451

166 Ark. 436

MEEK v. GREEN

No. 228

Supreme Court of Arkansas

November 10, 1924

Appeal from Ouachita Chancery Court, Second Division; George M LeCroy, Chancellor; reversed.

STATEMENT OF FACTS.

D. W Green brought this suit in equity against H. E. Meek and the First National Bank to cancel a contract for the purchase of two lots in the city of Camden, Arkansas, and to compel said bank to return to him the sum of $ 2,000 in cash and four promissory notes of $ 2,000 each deposited with said bank in escrow.

The defendant, Meek, admitted the execution of the contract for the sale of the lots, and set up facts entitling him to a specific performance of said contract. Wherefore he prays that the complaint be dismissed for want of equity, and that the contract of sale be specifically enforced.

On December 29, 1922, H. E. Meek entered into a written contract with D. W. Green to sell him two town lots in the city of Camden, Arkansas, for the sum of $ 10,000. Two thousand dollars of the purchase price was to be in cash, and the balance of it to be evidenced by four notes of $ 2,000 each. A deed executed by the party of the first part, the cash payment, and the notes for the balance of the purchase price were placed in escrow in the First National Bank of Camden Arkansas, to be delivered upon the following condition "The party of the first part agrees to deliver to said bank for the party of the second part, within five days, an abstract of title covering said land, whereupon the party of the second part shall have five days within which to have the title to said property examined by his attorneys and to deliver a written opinion upon the title to said bank for party of the first part, pointing out the defects of the title, if any. After the delivery of said opinion to said bank, the party of the first part shall have thirty days within which to cure defects in the title, if any, and redeliver said abstract and curative work to said bank. If said abstract of title shows a good title to said property in party of the first part at either of said times, then said bank is authorized to deliver said deed to party of the second part and said money and notes to party of the first part. If, however, the title to said property is not good or made good in party of the first part, as hereinbefore set out, then said bank shall deliver said deed to party of the first part and said money and notes back to party of the second part."

The plaintiff introduced in evidence the original abstract of title furnished by the defendant. The abstract shows a record title from the United States by mesne conveyances to David and Paulina Snow on June 15, 1866. Then O. E. Newton and D. Newton executed a deed of trust to said lots to Robert F. Sale, trustee for Bettie Treadway. The date of the instrument was February 1, 1882, and it is marked satisfied in full on January 22, 1883. The abstract also shows that D. Newton and Ora E. Newton executed other deeds of trust from time to time on said lots, which were satisfied of record. The abstract also shows that, on February 21, 1891, D. Newton and O. E. Newton, his wife, executed a deed of trust to A. A. Tufts, trustee, to secure a note for $ 3,000, due February 21, 1892.

This mortgage was foreclosed by suit in the chancery court, and a decree of foreclosure was entered of record on June 3, 1893. The chancery court record shows that the lots were sold by a commissioner appointed for that purpose, and were purchased by W. E. McRae on the 25th day of August, 1894.

The chancery court record also shows the execution of a deed by the commissioner to W. E. McRae on the 10th day of December, 1894, and the approval thereof on the same day by the chancery court. It was ordered that a copy of the order of the chancery court and the acknowledgment of the deed be entered upon the deed and certified by the clerk under the seal of the court, to the end that same might be entitled to record.

H. E. Meek deraigned title by mesne conveyances from said W. E. McRae. Affidavits and oral evidence curing the defects in the title were introduced in evidence, and will be referred to under an appropriate heading in the opinion.

The chancellor found the issues in favor of the plaintiff, and it was decreed that the contract of purchase between the plaintiff and the defendant be canceled, and that the First National Bank of Camden, Arkansas, should deliver, upon demand, to the plaintiff, D. W. Green, the sum of $ 2,000 cash and the four notes of $ 2,000 each deposited with said bank for the balance of the purchase price of said lots. The case is here on appeal.

Decree reversed and cause remanded.

Smead & Meek, for appellants.

It is conceded that a vendor contracting to deliver an "abstract showing good title" is required to furnish an abstract showing a good record title; but the rule is different where the vendor merely contracts to furnish good title or a marketable title, without specifically agreeing to furnish "abstract showing good title" or "marketable title." In the latter case, a title by limitation, or a title proved by other than record title, is sufficient. 152 Ark. 193. Appellant furnished appellee evidence of a safe limitation title. This court has recognized that an agreement to furnish an abstract is not synonymous with an agreement to furnish abstract showing perfect title. 154 Ark. 193; 151 Ark. 343. Counsel contend, both from the language of the contract, and from the presumptive knowledge of both parties of the chaotic condition of land titles in Ouachita County resulting from a fire, that the appellant merely agreed to deliver a good title, not an abstract showing good title.

Thos. I. Thornton, for appellee.

There is no ambiguity in the contract. It simply means that the abstract must show a good title in Meek, either at its first or last presentation. If it did not show it upon its first presentation, then the muniments of title covering the defects should have been procured, recorded and brought forward into the abstract, in order that the latter could show a good title in Meek. This is the "curative work" contemplated by the contract. The phrase "as hereinbefore set out" refers back to the clause "if said abstract of title shows a good title to said property in party of the first part at either of said times," and means that the title must be made good by additions to the record and that the abstract must show this, and within the time fixed by the parties. Maupin on Marketable Titles to Real Estate, 3rd ed. 165; 206 Ill. 512. An abstract of title contains only such matters as are shown by the record. 152 Ark. 192. The title shown by appellant would not be a good merchantable title, even if the contract had called for that character of title. In order to acquire title by adverse possession, the holding must be against one entitled to possession of the land held, and having the right to bring an action for its recovery. The statute of limitations does not run against a reversioner until the death of the life tenant. 60 Ark. 70; 98 Ark. 30; 116 Ark. 233. And the vendor must show that there are no persons in remainder who might claim the estate. 16 N.Y. 156, 54 N.E. 674; 128 Ark. 342. See also 126 Ark. 1; 117 Ark. 366; 115 Ark. 359; 140 Ark. 367; 172 S.W. 867 (Ark.); 65 Ark. 90; 58 Ark. 510; 69 Ark. 539; 97 Ark. 397. The contract called for, and Meek should have furnished, an abstract showing a good record title. The case of Dalton v. Lybarger, 152 Ark. 193, quoted from by appellant, is decisive of this question. See also 151 Ark. 343; Maupin on Marketable Titles, etc., 3rd ed. 24; 163 N.W. 924; 167 N.W. 15; 173 N.W. 871; 195 S.W. 259; 189 S.W. 275.

HART J., MCCULLOCH, C. J., dissenting.

OPINION

HART, J., (after stating the facts).

This court has held that, where a contract for the purchase and sale of land calls for an abstract showing good title, the covenant will be construed to mean a good record title, and not such a title as may be shown to be good by oral proof, or affidavits and other writings not subject to registration. In short, it is not sufficient in such cases that the title is good in fact, that is, capable of being made good by the production of affidavits or other oral testimony, but it must be good of record. Hinton v. Martin, 151 Ark. 343, 236 S.W. 267; Dalton v. Lybarger, 152 Ark. 192, 237 S.W. 694; and Bennett v. Farabough, 154 Ark. 193, 241 S.W. 895.

Counsel on both sides recognize this to be the settled rule in this State, but differ as to the effect of the language used in the contract under consideration in this case.

On the part of the plaintiff it is contended that the contract itself brings the case within the rule announced. On the other hand, it is contended by the defendants that, when the contract is construed as a whole, it shows that any defects in the title which could not be cured by record evidence might be supplied by affidavits and other oral proof.

The covenant in the contract on this point has been copied in our statement of facts, and reference will only be made to it here. The covenant provides that Meek shall deliver to the bank, for Green, an abstract of title covering said lands. It then provides that Green shall have five days within which to have the title examined by his attorney and a written opinion by him, pointing out the defects in the title, if any. The contract provides that Meek shall have thirty days within which to cure said defects in the title and to redeliver said abstract and curative work to said bank.

If the said abstract of title shows a good title in Meek at either of said times, then it is provided that the bank is to deliver the deed to Green and the money and notes to Meek. If, however, the title to said...