Andrews v. Heirs of Bellis

Steele Hays, Justice, dissenting. On the face of the mineral deed, properly acknowledged and recorded, from John and Emma Crotts to William B. Vance appeared a quitclaim deed dated June 25,1929. This quitclaim deed granted the previously reserved mineral interest of S.G. Harris to John Crotts. The majority holds that because the quitclaim deed was not properly acknowledged the mineral interests should not pass to the Crotts heirs, but instead vest in the heirs of S.G. Harris.

Admittedly, there was no acknowledgment of the quitclaim deed as recorded June 25,1929. However, an acknowledgment is not necessary to make the transfer of title via the quitclaim deed effective. A quitclaim deed is a substantive mode of conveyance, and is effective to carry all the right, title, interest, claim and estate of the grantor as a deed with full covenants. Smith v. Olin Industries, Inc., 224 Ark. 606 , 275 S.W.2d 439 (1955).

It is not necessary for a deed to be acknowledged. However, in order to be recorded, a deed must be acknowledged. Recordation then provides notice to the world. The majority states that, “the so called ‘deed within a deed’ was not a proper instrument for recordation.” But recordation only becomes important in order to give notice to subsequent bona fide purchasers and to provide a self-authenticating record.

The Chancellor found that Ark. Code Ann. § 16-47-108 (1987) cured the quitclaim deed’s lack of an acknowledgment and deemed the June 25,1929, quitclaim deed “acknowledged.” In Pardo v. Creamer, 228 Ark. 746 , 310 S.W.2d 218 (1958), we held that the curative provisions of Ark. Code Ann. § 16-47-108 (1987) could not supply an acknowledgment where there was none, and the chancellor erred in holding the quitclaim deed “cured” and “acknowledged.” Yet, this error is simply harmless because the acknowledgment is not vital to the validity of the underlying transaction, i.e. the transference of the mineral interest from S.G. Harris to John Crotts. Pardo concerned a petition for adoption and whether its recordation constituted a declaration of heirship. In order to make an heirship declaration valid, by statute, it must be acknowledged. Therefore, in Pardo acknowledgment was essential before recordation was proper, and only with the proper recording of the declaration could it have any force. This is not the situation before us. The quitclaim deed transfers the grantor’s interest in the property whether or not the instrument is acknowledged. Harvey v. Ledbetter, 219 Ark. 27 , 240 S.W.2d 18 (1951); McSwain v. Chrisweld, 213 Ark. 775 , 213 S.W.2d 383 (1948). Recordation provides notice to subsequent bona fide purchasers and acknowledgment is only needed to ensure recordation which is not vital to the underlying transaction.

According to the June 25,1929, quitclaim endorsement the grantor, S.G. Harris, appeared before a notary public, an officer having the authority to take the acknowledgment, Ark. Code Ann. § 16-47-103 (a) (1987), and executed the deed conveying the mineral interest to John Crotts. Evidence of this transaction was then transcribed by the clerk into the Pope County Record Book noting the name of the Notary Public and when his commission expired. However, this transcription fails to note a certificate of acknowledgment. The copy as it appeared in the Pope County Record Book provides secondary evidence of the execution of this deed.

The crux of the majority’s opinion focuses on the tangential issue of acknowledgment, with a veiled intimation that this conveyance may not even have occurred. However, there was no direct evidence of fraud and if such claims had a basis in fact they would surely have arisen before sixty years elapsed. I believe the chancellor, viewing the credibility of the witnesses and the totality of the evidence, was in the best position to determine the validity of the 1929 quitclaim deed. Box v. Dudeck, 265 Ark. 165 , 578 S.W.2d 567 (1979). Therefore, I respectfully dissent.