Smith v. Biddle

Hart, J., (after stating the facts). The conclusion we have reached renders it unnecessary to decide where the preponderance of the evidence lies on the question of the conditional deliverance of the contract in question. If it be conceded that the preponderance of the evidence shows that it was to be delivered upon condition that appellee should furnish an abstract showing a marketable title in himself to the Arkansas County land, the evidence shows that this has been done. It appears from the record that a certificate of entry was issued by the United States in 1820 to the Arkansas County land. This had the effect of investing the entry-man with the equitable title to the land. 32 Cyc. 1079, and Hartman v. Butterfield Lumber Co., 199 U. S. 335, 26 S. Ct. 63. Subsequently there was a forfeiture of the land to the State for taxes, and the grantors of appellee received a tax deed from the State. The tax deed, in connection with the affidavits showing continuous possession of the land in appellee and his grantors for 35 years before the execution of the contract in question, gave a marketable title, within the rule announced in Hinton v. Martin, 151 Ark. 343, 236 S. W. 267. Indeed, no complaint was made by appellants on the failure of title, except that, when the contract was executed, the record shows there was an outstanding mortgage on the land which had not been satisfied. The proof shows that this mortgage had been paid off before the contract in question was executed, but that, for some reason, a deed of release had not been secured and filed for record. The record shows that the deed of release was- duly procured and filed for record by appellee. No time was fixed in the contract for perfecting the title, and, where no time limit is fixed in the contract for the sale of land for perfecting the title, the seller has a reasonable time to perfect it. Dollar v. Knight, 145 Ark. 522. The deed of release was executed and filed for record within a reasonable time after the execution of the contract in question. The abstract shows a marketable title in appellee to the Arkansas County land, and the chancery court properly held that the contract of sale should not be rescinded because of the failure of appellee to furnish a marketable title. The decree will therefore be affirmed,