Stewart v. First Commercial Bank

953 S.W.2d 592, 59 Ark. App. 47, 1997 Ark. App. LEXIS 671
CourtCourt of Appeals of Arkansas
DecidedOctober 8, 1997
DocketCA 96-1498
StatusPublished
Cited by3 cases

This text of 953 S.W.2d 592 (Stewart v. First Commercial Bank) 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
Stewart v. First Commercial Bank, 953 S.W.2d 592, 59 Ark. App. 47, 1997 Ark. App. LEXIS 671 (Ark. Ct. App. 1997).

Opinion

Sam Bird, Judge.

On January 22, 1988, Thelma Laster Stewart and Thearders Hall entered into a written contract by which Hall agreed to loan Stewart $2,000 in cash, pay off a $4,100 balance owed by Stewart to Farmers Credit Service, and pay future taxes on Stewart’s fifty-seven acres in Lonoke County. The loan was to be repaid, plus interest “at a maximum rate allowed by law” and certain other specified expenses, on or before January 1, 1995. The contract provided:

. . . [Stewart] agrees to deed the [fifty-seven acres] to Thearders Hall as security for the above specified loan and Thearders Hall will have the option (AT HIS DISCRETION) to use the [fifty-seven acres] as security for future loans for himself or whatever (use the property as his own and for his benefit • ■ ■ -D]

Stewart’s deed to Hall was recorded on January 22, 1988, and the written contract was recorded on October 13, 1989.

In May 1991, Hall used the fifty-seven acres as security to obtain a $40,300 loan from appellee, First Commercial Bank of Lonoke, secured by a mortgage in favor of First Commercial.

In 1992, appellant was ready to pay off her loan to Hall, but could not get Hall to communicate with her or to provide her with the amount of her loan balance. She filed suit against him to compel an accounting for her payments and a statement of the loan balance, and to obtain a judicial interpretation of her contract with Hall. As a result of that lawsuit, on August 31, 1992, the chancellor entered a decree by which he determined the amount of the balance owed by Stewart to Hall on the loan and declared that the deed from Stewart to Hall was given as security for the loan and not as an outright conveyance. He also ordered Hall to reconvey the land to Stewart, “subject to the right, title, and interest of First Commercial Bank of Lonoke,” upon Stewart’s payment of the amount due on her loan from Hall into the registry of the court, to be applied as a credit against money owed by Hall to First Commercial. Stewart paid the money, and Hall (after prompting by a contempt citation) conveyed the fifty-seven acres back to Stewart by warranty deed.

At approximately the same time that the above-described lawsuit between Stewart and Hall was taking place, Hall defaulted on his loan from First Commercial, and the bank filed a foreclosure action against him on May 15, 1992. A default judgment was entered. First Commercial purchased Hall’s interest in the fifty-seven acres at the foreclosure sale and received a commissioner’s deed.

First Commercial was not a party to the lawsuit between Stewart and Hall, and Stewart was not a party to the foreclosure suit between First Commercial and Hall. Thus, the status of the tide to the fifty-seven acres at that point was that Stewart had a deed to herself from Hall describing the fifty-seven acres, pursuant to the decree of the chancery court, and First Commercial had a commissioner’s deed to itself describing the fifty-seven acres, arising out of its foreclosure suit against Hall.

Because of these two competing claims to the fifty-seven acres by Stewart and First Commercial, in 1994 First Commercial (hereinafter referred to as appellee) instituted a quiet-title action against Stewart (hereinafter referred to as appellant) in Lonoke County Chancery Court. The case went to trial, and upon stipulations and testimony, the chancellor entered a decree by which he fashioned the following solution: Since appefiee had failed to give appellant notice of its foreclosure action, appellant would be given one year in which to redeem the property by paying the balance owed on Hall’s $40,300 loan. If appellant failed to redeem the property within the year, the title would be quieted in appellee.

From that decree appellant brings this appeal arguing, first, that appellee did not meet the requirements for a statutory quiet title action as set forth in Ark. Code Ann. § 18-60-506 (1987); and second, that it would be inequitable for her, as an innocent victim, to bear the burden of paying Hall’s $40,300 loan. We agree with appellant that appellee did not meet the requirements for maintaining a quiet-title action.

One other item of information is necessary to an understanding of our decision in this case. In connection with appellee’s loan to Hall, appellee had obtained a title insurance policy covering the fifty-seven acres that contained the following “special exceptions”:

1. General Taxes and Special Assessments due for 1990 and subsequent years.
2. Special Assessments due Improvement District #5 for the year 1990 and subsequent years.
3. Lease Agreement by and between Willie Laster and Floyd Turner, dated November 17, 19_, filed December 27, 1978 in Miscellaneous Book 38 at page 778, records of Lonoke County, Arkansas. For a term of 15 years, beginning January 1, 1979 and ending the 31st day of September, 1993.
4. Agreement executed by and between Thelma Laster Stewart and Thearders Hall, dated January 22, 1988 and filed for record October 13, 1989 at 3:20 PM in Miscellaneous Book 57 at page 164, records of Lonoke County, Arkansas.

The fourth of these “special exceptions” refers to the recorded contract between appellant and Hall that stated that the deed appellant gave to Hall on January 22, 1988, was given as security to Hall for his loan to appellant.

In deciding this case we recognize that we review chancery cases de novo. Diener v. Ratterree, 57 Ark. App. 314, 945 S.W.2d 406 (1997). We will not reverse the chancellor’s findings unless they are clearly against the preponderance of the evidence or clearly erroneous. RAD-Razorback Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id.

Arkansas Code Annotated § 18-60-506 (1987), provides as follows:

If the petitioner cannot show a perfect claim of title to any particular tract or tracts of land, it shall be held to constitute a prima facie title if he shall show that he, and those under whom he claims, have had color of title to the land for more than seven (7) years and that during that time, he, or those under whom he claims, have continuously paid the taxes thereon.

We agree with appellant that the chancellor erred in ordering that title to the fifty-seven acres be quieted in appellee unless appellant redeemed the land by paying the balance owed on Hall’s mortgage to it.

First, appellee did not show that it held title to the fifty-seven acres. It is obvious from the record, insofar as the parties hereto are concerned, that title to the land is vested in appellant. The chancellor in the lawsuit between appellant and Hall held that appellant’s deed to Hall, although absolute on its face, was, in fact, a mortgage that secured Hall’s loan to appellant.

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Bluebook (online)
953 S.W.2d 592, 59 Ark. App. 47, 1997 Ark. App. LEXIS 671, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stewart-v-first-commercial-bank-arkctapp-1997.