White v. Moffett

• Decision Date: 09 June 1913
• Citation: 158 S.W. 505,108 Ark. 490
• Parties: WHITE v. MOFFETT
• Court: Arkansas Supreme Court

158 S.W. 505

108 Ark. 490

WHITE v. MOFFETT

Supreme Court of Arkansas

June 9, 1913

Appeal from Miller Circuit Court; Jacob M. Carter, Judge; affirmed.

STATEMENT BY THE COURT.

The appellees, John B. Moffett and others, brought this suit in ejectment for a certain forty acres of land in Miller County Arkansas, particularly describing it, alleging that they were the owners thereof and the children and heirs of N. R Moffett, who died seized and possessed of said land on December 4, 1905, leaving them, his children and Frankie Moffett, his widow, surviving him. They deraigned their title to said tract of land through a deed from Thomas P. Carroll to their father, N. R. Moffett, of date November 4, 1901 which was alleged to have been lost or misplaced, and that it was placed of record in Miller County June 12, 1906.

Benjamin F. White filed a separate answer, denying that appellants were the heirs of N. R. Moffett, and the owners and entitled to the possession of the lands claimed, and also that N. R Moffett died seized and in possession thereof, or that he was ever the owner of the said land, as claimed. The defendant deraigned title through a chain of conveyances set out, the first one a warranty deed from T. P. Carroll and wife executed to Frankie Moffett on January 6, 1905, recorded January 6, 1905. Then follows a deed from her, conveying the land to Sam Johnson on January 18, 1905, recorded March 24, 1906. Sam Johnson and wife conveyed same by warranty deed to Charles H. Cline on March 13, 1908, which was recorded March 14, 1908, and Charles H. Cline and wife conveyed same by warranty deed to appellant, White, on June 11, 1908, which was recorded on August 5, 1908. The answer also alleged that White was the owner and entitled to the possession of the land and that the deed from T. P. Carroll and wife to Frankie Moffett, and from Frankie Moffett to Sam Johnson, already referred to, were both placed of record before the alleged deed in the complaint, relied upon by appellees. Denied information sufficient to form a belief as to the deed relied upon by appellees was ever executed or that the consideration therein mentioned was ever paid.

From the testimony it appears that T. P. Carroll and wife, in consideration of the sum of three hundred dollars, one hundred dollars of which was paid in cash and two notes for $ 100 each, due January 1, 1903, and one due January 1, 1904, conveyed the lands by warranty deed to N. R. Moffett, November 4, 1901, which was not filed for record until June 12, 1906, after the deeds from said Carroll and wife conveying the same land to Frankie Moffett, the widow of N. R. Moffett and from her to Sam Johnson were both recorded. It was also shown that appellees were the children of N. R. Moffett, who purchased the lands before his marriage to Frankie Moffett, who was his third wife, and that he lived on the place as his homestead until the time of his death, and that the widow continued to reside thereon until 1905 and 1906, and died in 1908.

Carroll testified that he sold the land to N. R. Moffett, made him a deed thereto, but did not remember the date and that later, after his death, his widow stated to him that the deed was lost and had not been recorded, and demanded that he make a deed to the place to her which he did, after a consultation with a justice of the peace, upon the payment by her of between $ 80 and $ 100, the balance of the purchase money which was still due. He said, "The reason I made this second deed was that the other deed was lost or destroyed, or something, and she was willing to go before a justice of the peace and swear that it was lost or destroyed, and they told me that I could make the deed." That Moffett lacked between $ 80 and $ 100 of paying for the land when he died. He was not married when he purchased the land, but married shortly thereafter.

There was also testimony tending to show that Frankie Moffett had no property and there was some testimony indicating that there was some cotton on hand at the time of Moffett's death. The deed from Carroll and wife to Moffett conveying the land was introduced in evidence, as were also the others set out in the answer. Mr. Cline testified that he bought the land from Sam Johnson in March, 1908; that he had an abstract of the title furnished and talked with J. D. Sanderson, who was an abstracter, and had been recorder of Miller County for some years, and was told the title to the land was all right. He also, after being furnished the abstract, submitted it to an attorney and had him investigate the title and that he declared that it was all right. That he knew of no one making any claim of ownership to the lands adverse to Sam Johnson, except the bank's claim, for the lien shown on the said abstract, and had no knowledge of any claim by the heirs of N. R. Moffett, and learned for the first time about the middle of November, 1911, that they were making claim of ownership to the lands. That Sam Johnson was in control and possession of the lands when he purchased them. He also stated that he did not examine the record, but he examined the abstract furnished him, read it, and employed an attorney, who pronounced it all right and the title good.

White testified that he was the owner of the lands and purchased them from his brother-in-law, Cline, who assured him that he had made investigation as to the title and that it was perfect; that he also examined the abstract and could see nothing wrong with the title. That he had lived on the forty acres of land adjoining the one in question for three or four weeks before purchasing it and did not hear at any time of any one making claim to it until the fall of 1911; never heard of the Moffetts before their claiming title; that Sam Johnson was in possession of the land at the time he bought it, but acknowledged his right and delivered possession to him upon demand, and he had paid the taxes thereon ever since.

Appellee offered testimony to show that Sam Johnson was not an innocent purchaser of the land, but upon objection of appellant the court refused to allow the testimony to be introduced. After the testimony was all in the court instructed the jury to return a verdict for appellees and from the judgment thereon this appeal is prosecuted.

Judgment affirmed.

William H. Arnold and Gustavus G. Pope, for appellant.

1. The deed from Carroll to Frankie Moffett and the deed from her to Sam Johnson were both recorded prior to the recording of the deed from Carroll to N. R. Moffett. Johnson acquired a good title. 56 Ark. 223; 70 Ark. 256. Appellant acquired a good title when he purchased from Johnson through Cline, notwithstanding N. R. Moffett's deed was recorded prior to such purchase.

The record of a deed which is not in line of a party's title is not constructive notice to him. 99 Ark. 447; 76 Ark. 525; 147 S.W. 70; 104 S.W. 36; 78 F. 563; 69 Ark. 99; 87 Ark. 492. The vendee of a bona fide purchaser stands in the same attitude as his vendor and is entitled to the same protection. 49 Ark. 207.

The continuous chain of title back to Carroll, the payment of taxes and the adverse possession of Frankie Moffett and Sam Johnson justified Cline and appellant in accepting the title as good. 90 Ark. 149; 101 Ark. 163.

2. If appellant had constructive notice of the claim of the Moffett heirs, yet he would have an equitable interest in the land by virtue of the amount paid by Mrs. Moffett to satisfy the balance of the vendor's lien retained by Carroll, and also the taxes paid since that date. 84 Ark. 283; 69 Ark. 198; 43 Ark. 498.

One who holds land under an equitable title can not be ejected therefrom. 85 Ark. 25.

E. F. Friedell, for appellees.

1. The recording...