Henry Wrape Co. v. Cox

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, and cases cited. See also McDonald v. Belding, 145 U. S. 492. (2) 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; Hudgins v. Schultice, 118 Ark. 139. (3) 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; 25 Cyc. 1452. As we 'have already seen, the plaintiff paid an adequate price for the property. The record shows that the defendant Sarah I. Cox, filed an intervention in the suit of the Stecher Cooperage Works to confirm its title to certain lands including the land in controversy. The question, then, is, did the plaintiff have notice of her claim or did it have notice of facts which, if followed up, would lead to knowledge of her claim at the time the conveyance was made to it by the Stecher Cooperage Works 1 Frank Wrape, who was the treasurer and also a stockholder in the plaintiff Corporation, testified that the plaintiff was not in possession of such knowledge. The plaintiff bought a number of tracts of land from the Stecher Cooperage Works at the time and took a warranty deed to all of them except the forty acres in controversy and another forty-acre tract. The reason the Stecher Cooperage Works did not execute a warranty deed to the land in controversy was that a man named Hibbard had obtained judgment awarding him possession of that tract of land. The claim of the ¡defendants Cox to the land was not considered because it was not then known that the defendants claimed any interest whatever in the land. Frank. Wrape further testified that he was on the land after the plaintiff bought it, that the land was then unimproved with no one in possession of it; and that he did not learn that the defendants claimed any interest in the land until December, 1911, several months after the land was purchased by the plaintiff. In the main he is corroborated by the testimony of McHale to whom the plaintiff ¡sold the timber on the land in the early part of 1911. McHale testified that he went on the land soon after he bought the timber; that no one was in possession of it at that time, and that it was then unimproved. He also testified that the first notice he had that defendants ¡claimed any interest in the land was in December, 1911, at the time Frank Wrape had the conversation with F. E. Cox at the hotel in Bald Knob. The testimony on the part of the plaintiff is reasonable and consistent in itself; and we do not think it is contradicted by any substantial testimony whatever. An attempt was made by F. E. Cox to contradict the testimony of the plaintiff but when his testimony is fully analyzed we do not think it tends in any manner whatever to contradict that of the plaintiff. He testified at first that there had been a house on the land but further on in his testimony stated that this house had been burned down several years before the plaintiff purchased the land. Again, he stated that he thought the conversation with the plaintiff in regard to Ms wife’s claim to the land occured before the plaintiff had completed its purchase of the land, but when asked how he knew this, could not give any reason whatever for tMnking so; and upon being further questioned, it is evident that he meant he thought the conversation occurred before the plaintiff had sold the timber on the land to McHale. We have not attempted to set out in full the testimony of F. E. Cox, but when it is carefully considered we do not think there is anything in it from wMoh it may be inferred that the plaintiff had any knowledge of the claim of Mrs. Cox' at the time it purchased the land. In short, we think the undisputed evidence shows that the plaintiff was an innocent purchaser for value of the land. (4) We have never adopted the scintilla rule in tMs State but have' uniformly held that there must be some evidence of a substantial character to uphold a verdict of the jury, or the finding of fact made by a court sitting without a jury. Our opinion is that there was no testimony of a substantial character to support the finding of the circuit court in favor of the defendants. The court, therefore, erred in finding for them and for this error the judgment will be reversed and the cause remanded for a new trial.