Party "A" owns 3.5 AC.
He deeds 3.5 with warranty deed to party "B". 5 yrs ago. Party "B" fails to record deed.
Fast Foreward to today.
Party "A" deeds 3.5 AC to party "C" with Quitclaim.
Party "C" records his deed.
Arkansas is a "race to the courthouse" state.
Can Party "B" come back, and take land from "C"?
Does "C" have good title, (assuming no other actions were performed by party "A" to cloud the title?
Maybe ddsm could weigh in here.
Thank you!
N
I'm going to guess that B can't get the land from C, but he has a good case for damages from A based on the warranty deed.
Now let's see what the experts say.
First to record, first to notify public and establish title.
Party A has committed a crime and owes somebody a refund and may goto jail considering how influencing the defender is and how experienced the DA is.
Can only sell the farm once.
With the deed to C being a QCD, it seems that A disclosed that he may or may not have actual title anymore.
Did B take actual possession of the land??ÿ If not, has C taken actual possession of the land?
Was A paid for the land by B then again by C?
With the deed to C being a QCD, it seems that A disclosed that he may or may not have actual title anymore.
Did B take actual possession of the land??ÿ If not, has C taken actual possession of the land?
Was A paid for the land by B then again by C?
B never took possession. C took possession. It it not known if b ever paid for land. It's heresy, that b got a deed.
With the deed to C being a QCD, it seems that A disclosed that he may or may not have actual title anymore.
Did B take actual possession of the land??ÿ If not, has C taken actual possession of the land?
Was A paid for the land by B then again by C?
B never took possession. C took possession. It it not known if b ever paid for land. It's heresy, that b got a deed.
Is C a bonafide purchaser for value without notice?
Property law is very complex.
Arkansas' race notice statute reads a lot like Oregon's:
14-15-404. Effect of recording instruments affecting title to property.
(b)?ÿNo deed, bond, or instrument of writing for the conveyance of any real estate..... shall be good or valid against a subsequent purchaser of the real estate for a valuable consideration ...... unless the deed ..... is filed for record in the ....... county where the real estate is situated.
I'd say the B is out of luck, except that if he paid A anything he might be able to get his money back.
Is C a bonafide purchaser for value without notice?
Property law is very complex.
Yes, C is a bona fide purchaser. Receipts.
Nate
It's heresy, that b got a deed.
Heresy, indeed. Probably you mean hearsay?
Hearsay! Heresy indeed!
Spell check gott me!
I am far from an expert in property law but I would think B has superior title since C received only a quitclaim Deed. B needs to produce the actual Deed, hearsay is insufficient.
Although recorded the Quitclaim Deed is ineffective since A had no title to grant.
I usually resist the temptation to play lawyer -- this is a legal question for a lawyer and not a question for a surveyor, but I've failed to resist: recording provides constructive notice, but the real question is whether C had ACTUAL notice of the deed to B, in which case I think B will prevail. I'm nit-picking here only because I know of a case here in Maine where someone in C's position had actual notice of the deed to B and thus lost out to B. In Maine, C went to A and finagled him into giving C a deed, knowing that B had not recorded, and thinking he was pulling a fast one on B, and being unaware of the niceties of the laws around notice. Turns out the C of Maine was actually a land surveyor (which had little to do with his squabble with B) and was a well-known incompetent and a crook, who got what he deserved (which was not B's land).
One of my concerns is that A may backdate a warranty deed, and give it to any "B", and use it to sell land 2x. Real long shot. But they have enough malice to pull such a stunt.
After C pays tax, and has possession of it, and time passes, it will become very hard, but the 1st person to the courthouse, has to count for some score in this. I think.
N
Maybe C should buy title ins.
N
It appears Arkansas is a notice state, not a race state.?ÿ Recording only gives constructive notice, while the bfp needs actual notice.?ÿ So the first deed would not defeat the second merely by being recorded first at this late date.?ÿ Quit Claim and Warranty are equal, but the grantor will be liable to the grantee of the warranty deed for defense of title costs, and has no liability to defend title on the quit claim.?ÿ You would need to look at some Arkansas court cases on point to see how this plays out in practice there.?ÿ It seems Arkansas wants the most recent transaction to be valid and encourages recording only for purposes of protection of creditors.?ÿ Generally speaking, in a pure notice state such as this, the second purchaser wins if they can prove bfp status and proper proof of valid deed (notarized, 2 witnesses, etc.).
"18-12-209.?ÿRecorded deed or written instrument affecting real estate.
Excerpt from an Arkansas case dealing with actual notice where prior deed not recorded:
"Mueller and TXO did have knowledge of other matters which, as the Killams claim, should have caused them to inquire beyond the entries in the county records. This is the type of notice we spoke of in Massey v. Wynne, 302 Ark. 589, 791 S.W.2d 368 (1990), when we said that a subsequent purchaser will be deemed to have actual notice of a prior interest in the property if he is aware of such facts and circumstances as would put a person of ordinary intelligence and prudence on such inquiry that, if diligently pursued, would lead to knowledge of these prior interests. This type of notice must be enough to excite attention or put a party on guard to call for an inquiry. Henderson v. Ozan Lumber Co., 216 Ark. 39, 224 S.W.2d 30 (1949)."
Here, anyway, the title insurance company will not issue a policy based on a QCD alone.
I usually resist the temptation to play lawyer -- this is a legal question for a lawyer and not a question for a surveyor, but I've failed to resist: recording provides constructive notice, but the real question is whether C had ACTUAL notice of the deed to B, in which case I think B will prevail. I'm nit-picking here only because I know of a case here in Maine where someone in C's position had actual notice of the deed to B and thus lost out to B. In Maine, C went to A and finagled him into giving C a deed, knowing that B had not recorded, and thinking he was pulling a fast one on B, and being unaware of the niceties of the laws around notice. Turns out the C of Maine was actually a land surveyor (which had little to do with his squabble with B) and was a well-known incompetent and a crook, who got what he deserved (which was not B's land).
Good grief-
The quit claim deed versus the warranty deed argument is meaningless in a race state. The warranty deed may give B an opportunity to seek compensation from A, but has no effect on title?ÿunless it can be argued that C knew about the deed to B. So C has title under a cloud....
Source: I successfully won a battle with a railroad based on a state law that reads just like AR's.
Another twist in this one, is a separate signed by "A" document, that is notarized, stating that "A has not performed any action that would encumber title to subject property, while in his possession".
(In essence, he is denying "B's" deed.) Making either himself liable, or his estate liable, if "B's" deed ever surfaces. A is claiming that a qc was needed, because of "possible events beyond his control". I think that claim is bogus, and that A was trying to be a horses behind, by doing a qc, not a wd.
But, if fraud shows up, then the secondary document could come into play.
N