Bank of Cave City v. Abstract & Title Co.

828 S.W.2d 852, 38 Ark. App. 65, 1992 Ark. App. LEXIS 339
CourtCourt of Appeals of Arkansas
DecidedApril 22, 1992
DocketCA 91-424
StatusPublished
Cited by1 cases

This text of 828 S.W.2d 852 (Bank of Cave City v. Abstract & Title Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bank of Cave City v. Abstract & Title Co., 828 S.W.2d 852, 38 Ark. App. 65, 1992 Ark. App. LEXIS 339 (Ark. Ct. App. 1992).

Opinion

Melvin Mayfield, Judge.

Bank of Cave City appeals from a summary judgment of the Cleburne County Circuit Court dismissing its complaint which sought damages for an alleged omission in an abstract of real property on which appellant later took a mortgage. Appellant urges this court to hold that, as a matter of law, complaints for money damages, not yet reduced to judgment, must be included in abstracts of title. We decline to so hold and affirm.

On April 30, 1987, appellant requested that appellees update an abstract on real property. Appellees did so and returned the update to appellant’s attorney. On October 22,1987, appellant’s attorney requested that appellee update the same abstract again. On October 26, 1987, appellees certified the updated abstract. This Continuation Certificate of Abstract No. 1929 provided as follows:

WE HEREBY CERTIFY that we have carefully examined the records in the County and Circuit Clerks and Recorder of Cleburne County, from the 18th day of May, 1987, at 10:00 o’clock A.M., and the foregoing 7 sheets numbered 62 to 68, inclusive of this certificate, contain, as we believe, a correct abstract of all the conveyances or other instruments of record affecting the title to the land or lot described in the caption hereof.

A complaint filed by Farm Bureau Mutual Insurance Company of Arkansas, Inc., and Southern Farm Bureau Casualty Insurance Company against the owner of the property on December 10, 1986, did not appear in the abstract when it was updated by appellee on October 26, 1987. This complaint was reduced to judgment on November 25, 1987, and was recorded before appellant took a mortgage on the property dated November 30, 1987, and filed December 2, 1987.

In order for its mortgage to be entitled to a first lien status, appellant paid off the judgment. Then, alleging that it had been damaged in the sum of $6,000.00 and that appellees’ failure to include the complaint in the abstract constituted negligence, appellant sued appellees on September 18, 1990. Appellees denied that they were required to include the complaint in the abstract update of October 26, 1987, and affirmatively pled that appellant was guilty of contributory negligence in failing to search or request a search of the real estate records from the date of the last continuation of the abstract to the date of the closing of the loan.

Appellees and appellant agreed upon the facts and both moved for summary judgment. In making its decision, the circuit court had before it the abstract, appellees’ admissions, and the affidavits of three abstracters. One abstracter stated that it was the policy of her abstract company to include all complaints requesting monetary judgments against title holders of real property in the abstract. On the other hand, two other abstracters stated in their affidavits that it was not their practice to do so unless a lis pendens had been filed in conjunction with the complaint.

The circuit judge, in dismissing appellant’s complaint, found as a matter of law that the complaint was not a matter of record required to be included in the abstract. From this judgment, comes this appeal. ■

Appellant acknowledges that abstracters are divided as to the necessity for including complaints for money damages in abstracts. Nevertheless, citing Stephenson v. Cone, 24 S.D. 460, 124 N.W. 439 (1910), appellant argues that an abstracter must furnish to an intended purchaser or mortgagee, by means of the abstract, everything pertaining to the names and to the property in question that might reasonably affect the title. In Stephenson v. Cone, supra, the continuation of an abstract had omitted two judgments against the property- owner. The judgments were rendered against an Ed. J. Borstad and the abstract was made on lots deeded by Edward J. Borstad. That case, therefore, does not hold that a complaint not reduced to judgment must be included in an abstract. The court stated:

It has been the universal custom and practice in this state to sue and maintain actions against defendants by the initial letters of their Christian names, and to so enter and docket the judgment, and which custom and practice the defendant Cone was bound to know as a part of his business as abstractor. To now hold that all judgments are invalid as notice, excepting only where the full Christian name of defendant is indexed or docketed, would be to practically render void and ineffectual a majority of the judgments of this state. While it is not generally a part of the duty of an abstractor to go outside the record to search for facts affecting the title to real estate, still he must furnish to an intended purchaser, by means of the abstract, everything pertaining to the names and to the property in question, so far as appears from the record, that reasonably might affect such title, and thus put the purchaser on inquiry, in order that such purchaser may himself make the proper investigations as to the outside facts. In searching the records for judgments against Edward J. Borstad, the defendant Cone was charged with the knowledge and bound to know the different forms in which the name Edward J. Borstad might be used in entering judgment against him, and to make his search accordingly.

124 N.W. at 440. Clearly, this case does not support appellant’s argument.

The term “abstract of title” is defined in Ark. Code Ann. § 17-11-102(1) (1987) as “a compilation in orderly arrangement of the materials and facts of record affecting the title to a specific piece of land, issued under a certificate certifying to the matters therein contained.” Ini C.J.S. Abstracts of Title % 10 (1985), it is stated: “Ordinarily, an abstractor has no duty in his investigation, to go outside the records, and, in the absence of special agreement, it is not his duty to investigate and determine whether there is any lien or incumbrance on the property which is not shown upon the records.” See also George W. Thompson, A Practical Treatise on Abstracts and Titles § 16 (2ded. 1930). It is stated in 1 C.J.S. Abstracts of Title § 5 (1985) that an abstract should contain a statement of all conveyances, wills, “other instruments or matters of record relied on as evidence of title, and of all instruments, judicial proceedings, and other records which in any way affect the title. . . .”

The types of instruments required to be recorded in Arkansas are set forth in Ark. Code Ann. § 14-15-402(a) (1987):

It shall be the duty of each recorder to record, in the books provided for his office, all deeds, mortgages, conveyances, deeds of trust, bonds, covenants, defeasances, or other instruments of writing of or concerning any lands and tenements or goods and chattels, which shall be proved or acknowledged according to law, that are authorized to be recorded in his office.

Under Arkansas law, a complaint does not constitute a lien on land until it is reduced to judgment. Arkansas Code Annotated § 16-65-117 (Supp. 1991) states in part:

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828 S.W.2d 852, 38 Ark. App. 65, 1992 Ark. App. LEXIS 339, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bank-of-cave-city-v-abstract-title-co-arkctapp-1992.