120 Ark. 620 | Ark. | 1915
This is a suit in ejectment, both parties thereto 'claiming title through one D. D. Titus. The testimony in the case was devoted chiefly to the answer to this question: “Was D. D. Titus the owner and in possession of the land when he and his wife, Nancy K. Titus, executed the deed to their two sons, John D. Titus and James M. Titus, on May 18, 1895, and filed for record oh May 20,1895? Or had D. D. Titus prior to May 20,1895, placed appellant in possession of the land under a contract of purchase?”
Appellees were the plaintiffs below and claimed title under the deed dated May 18, 1895, 'and they prayed the cancellation of a deed from D. D. Titus to appellant dated June 19, 1902', land appearing of record in the office of the Recorder of <St. Francis County. This last was a quitclaim deed. Appellant, however, based his claim of title upon a parol contract of purchase under which he says he entered upon the possession of the land in the fall of 1894, since which time he had continuously occupied it as owner, and he says the quit-claim deed was executed pursuant to this 'agreement, and he alleged thé facts so to be.
On appellees’ motion the cause was transferred to equity, where the court found against appellant’s contention.
The evidence in the case is conflicting, and upon a consideration of it we are unable to say that the chancellor’s finding is clearly against the preponderance of the evidence.
It is urged, however, that ¡appellant cannot recover for his improvements because he has no color of title. It is essential under the statute for one, not only to have acted in good faith, but also to have color of title to recover the value of his improvements. Section 2754 of Kirby’s Digest.
“In England we understand the law to be that a deed of release can never operate technically as a conveyance per se, but only by way of enlargement of a previous estate. Consequently if the releasee were not in possession and had not some other interest in the land, he had no estate to be enlarged. But in this country a quitclaim deed is a substantive mode of conveyance, and is as effectual to carry all the right, title, interest, claim and estate of the grantor, as a deed with full covenants, although the grantee has no possession of or prior interest in the land. It is almost the only mode in practice where the vendor does not wish to warrant the title.”
In the case of Beard v. Dansby, 48 Ark. 183, the court, in discussing the betterment act, said:
“The only requirements of the act are, that the occupant should have had peaceable possession, at the time the improvements were made, under color of title and under the belief that he was the owner of the land. Any instrument having a grantor and grantee, and containing a description of the lands intended to be conveyed, and apt words for their conveyance, gives color of title.”
In the case of Teaver v. Akin, 47 Ark. 528, the court defined color of title to be that which in appearance is title, but which in reality is no title, and quoted with approval from the case of Hall v. Law, 102 U. S. 461, as follows: “Whenever an instrument, by apt words of transfer from grantor to grantee, in form passes what purports to be the title, it gives color of title.” See, also 3 Washburn on Real Property (6th ed.), sec. 1981; Power v. Kitching, 86 N. W. 737, 88 Am. St. Rep. 708; 1 R. C. L. 711; 1 Cyc. 1095.
“But the constructive notice of an adverse title, which the law implies from the registry of a deed, is not sufficient to preclude the occupant from recovering for improvements, if he, in fact, purchased in good faith and under, the .supposition that he was obtaining a good title in fee. Actual notice is the test — that is, either knowledge of an outstanding paramount title, or of some circumstance from which the court or jury may .fairly infer that he had cause to suspect the invalidity of his own title. _ Now, the mere fact that the defect in the title would have been disclosed upon an examination of the public records does not bring such knowledge home to him; for it is not.inconsistent with his ignorance of the existence of such a deed, nor with an honest belief that his title is uncontested. ’ ’
The decree of the court 'below insofar, as it awards the land to appellees will be affirmed, but the cause will be remanded for further hearing upon the question of improvements made since the date of the quit-claim deed.