Meek v. Green

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; Dalton v. Lybarger, 152 Ark. 193; and Bennett v. Farabough, 154 Ark. 193. 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 property is not good, or not made good in Meek, 'as hereinbefore set out, then the deed and the money and notes are to be returned to the respective parties. The majority of the court is of the opinion that this language authorizes Meek to supply defects in the title by affidavits and other oral proof. The covenant provides for a redelivery of the abstract and curative work to the bank. If it merely contemplated strengthening the abstract by record evidence omitted from it, it would not have been necessary to have used the phrase, “curative work. ’ ’ It is true that the next sentence uses the words, “if said abstract of title shows a good title * * * at either of said times;” but it seems clear that the words, “said abstract of title,” means the abstract containing the curative work. In short, said “abstract of title” refers to the words, “said abstract and curative work,” and shows that the parties intended to use the words, “abstract of title,” in an enlarged sense so as to include the curative Work. This view is strengthened by the next sentence in the covenant, which provides that,' if the title to the said property is not good, or made good in Meek, then the bank shall redeliver the deed, money and notes to the respective parties entitled to the same. If the words, “curative work,” were not intended to mean anything except record evidence, they need not have been used. The parties would simply have provided that Meek should have thirty days within which to cure defects in the title oi' to amend the abstract and then redeliver the abstract to the bank. If it was intended that record evidence alone should be used, such evidence would be part of the abstract of title, and it would not have been necessary to have used the words, “curative work,” at all. In short, if the contract meant that Meek was to furnish an abstract of title which, on its face, would show that he had a good title of record, then it should have merely given him additional. time to perfect or amend his abstract of title. The contract, in our opinion, when considered from its four corners, simply means that, if Meek had a good title to the lots at the end of the period of time given him for curing defects in it, the contract was to stand; and if he did not have a good title at that time, the contract was to be at an end. By adverse possession, it is sufficient to enable the vendor to maintain an action for specific performance against the purchaser in the absence of a contract for a perfect record title. In such cases, however, the proof of the adverse possession must be readily available and of a character so* convincing as to leave no reasonable doubt of its sufficiency. Hinton v. Martin, 151 Ark. 343. Tested by this rule, we think the testimony in the case entitles Meek to a decree for specific performance. D. Newton and O. E. Newton, his wife, ■ executed a deed of trust to the lots on February 21, 1891, to secure an indebtedness of $3,000. The fee in the lots was mortgaged. The deed of trust also contained a covenant that the lots were free from all incumbrances, and that the grantors would forever warrant and defend the title to the same. D. Newton and Ora E. Newton were made parties to the foreclosure suit. "W. E. McRae became the purchaser at the foreclosure sale, and received a deed from the commissioner appointed to make the sale. The deed was acknowledged in open court, and McRae went into possession'of the lots by virtue of his deed, and remained in possession of them until he sold them. According to the testimony of one witness, the lots were known as the Newton lots in 1878, and they then had a building on them. Another witness stated that they were known as the Newton lots in 1872. Affidavits of several witnesses were filed to the effect that they had known the lots for forty years, and some of the witnesses had known them for forty-five years. They all said that D. Newton and Ora E. Newton were in the exclusive possession of the lots until they were sold under the foreclosure decree in 1894; that W. E. McRea then went into possession of the lots, and that he and his grantees have been in the exclusive and peaceable possession of them ever since; and that none of the parties mentioned, or their heirs, have ever been insane. The affidavit of Mrs. Ora E. Newton was also filed with the abstract of title. According to her testimony, the lots were in the peaceable and adverse possession of her husband, D. Newton, and herself for many years prior to the year 1894. She does not recollect how they acquired title to the property. She does recollect that W. E. McRea acquired title to the property in 1894, and since that time neither her husband nor herself nor any of tlieir children have had any claim or made any claim to said lots. It appears that D. Newton is dead, but the affidavit of his son, R. D. Newton, was also filed: According to his testimony, all of the children of D. Newton and Ora E. Newton are still living, and all of them are more than thirty-five years of age, except two children who died in infancy. R. D. Newton is sixty-one years of age, and has been a resident of Camden all of his life. His father had been in the actual possession of said lots from about the year 1870 to the year 1893, when the lots were sold under a mortgage foreclosure decree and purchased by W. E. McRae. R. D. Newton stated further that it was a matter of family history that his father received a deed to the .lots from the city of Camden about the year 1870, in consideration of services rendered the city. There is no dispute that all of these persons have had the actual and peaceable possession of-the lots during the years mentioned. No other person has ever made a claim of title to the lots during this time. The evidence to this effect is available, and there is but little room to doubt that Meek and his grantors have title to the lots by adverse possession. Hence all the requirements of the law as to the title by adverse possession, where specific performance is asked, have been met. Therefore we are df the opinion that Meek was entitled to a decree of specific performance as prayed for by him, and, for the error in canceling the contract of purchase and sale- between him and Green, and ordering the restoration of the consideration to the latter, the decree will be reversed, and the cause will be remanded with directions to enter a decree in accordance with this opinion. It is so ordered.