Hollabaugh v. Taylor

SMITH, J., (after stating tbe facts). (1) It is contended tbat a suit for tbe specific performance of the contract- can not be maintained for tbe reason tbat tbe contract was not reduced to writing. But it sufficiently answers this objection to say tbat 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 tbe case out of tbe operation of tbe statute of frauds. Barr v. Johnson, 102 Ark. 377; Moore, Keppel & Co. v. Ward, 76 S. E. 807, 43 L. R. A. (N. S.) 390; Lewis v. Brother, 21 S. W. 538; Manning v. Foster, 49 Wash. 541, 96 Pac. 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 tbat tbe abstract of title was not delivered to tbe bank within tbe time agreed -upon. But Hollabaugh and Hudspeth testified otherwise, and tbe court found against appellee on this point, and further found tbat time was not of tbe essence of tbe contract, and we think tbe evidence supports tbat finding. The deeds which are alleged to cast a cloud upon tbe title are these: (1) A deed from John S. Stephenson to J. B. MeCasland, dated April 3,1903. This deed contains a recital tbat it “is given in lieu of a former deed from J. "W. Henley and wife to John B. Stephenson, said deed having been lost or destroyed. ” There was a deed to this land from John S. Stephenson to N. J. McBride. (2) A deed from N. J. McBride to J. B. MeCasland, dated April 11,1903. This deed contained the recital that it “is given in lieu of a former deed given by N. J. McBride, former deed being lost or destroyed. ” (3) A deed from Mathew Sooter to J. B. McCasland, dated April 11, 1903. This deed recites that it “is made in lieu of a former deed made by Mathew Sooter to J. F. Hensley, since lost or destroyed.” It is insisted that these deeds are void and of no effect and did not constitute a cloud on Hollabaugh’s title for the reason that they show on their face that Sooter, McBride and Stephenson had, by former deeds, conveyed away all right, title and interest in said lands and had no interest to convey to McCasland. It is not entirely clear from the abstract of the deeds just what the effect of these deeds is. One of them, for instance, recites, as stated above, that ‘ ‘ This deed is given in lieu of a former deed given by N. J. McBride, former deed being lost or destroyed,” and the examiner of the title no doubt concluded that the deed referred to as having been lost or destroyed was itself from McBride to McCasland. (2) The title, examiner required a quitclaim deed from the heirs of McCasland (it being shown that he was dead); but this deed was not furnished. Hollabaugh was entitled to a reasonable time within which to obtain this deed, but he made no attempt to obtain it. He stood upon the proposition that the deeds to McCasland did not constitute a cloud. He must, therefore, fail in his suit for specific performance, because we have here the opinion of a reputable attorney against the title, and later a finding of fact by the lower court that the deeds in question did cloud the title. In.the case of Shelton v. Ratterree, 121 Ark. 487, we said: ‘ ‘ The effect of our decisions is that a purchaser under an executory contract of sale has the right to be assured, not only that no successful assault can be.made against the title he is asked to take, but that there is no reasonable apprehension of its being assailed, and it should be a title which he can readily transfer in the market.” We can not say, upon the state of this record, that the title tendered Taylor meets the requirements of this test. (3-4) It is finally insisted that the court erred in refusing to allow Hollabaugh to withdraw and amend his abstract of title to show a deed from the widow' of Mc-Casland and his known heirs which had been obtained to meet the objection which the court said made the title unmerchantable. In answer to this contention, it is said that it was not shown in the motion that the deed had been executed by all the heirs of McCasland. Be that as it may, the fact appears that the cause was submitted to the court on May 27, 1917, and the -opinion of the court was rendered on November 2, 1917, but the decree was not entered of record until November 19, 1917. The motion for leave to amend the abstract recites that the ‘ ‘ application was made before the decree was entered and at the first opportunity he had after the court held that the title was defective.” It was within the discretion of the court to refuse this application at the time it was made, as the deed from the McCasland heirs was not a part of the record upon which the case was tried. A decree becomes effective from the day of its rendition, and not from the day of its entry of record. Chatfield v. Jarratt, 108 Ark. 523. Having tried the case upon the record made, and having rendered judgment thereon, it was within the discretion of the court to refuse to vacate its decree for the purpose of trying the case anew upon an amended record. Decree affirmed.