134 Ark. 415 | Ark. | 1918
(after stating tbe facts).
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.
‘ ‘ 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.