In Johnson v. Cohick (Ark. Ct. App. 2024), the Arkansas Court of Appeals reversed a Carroll County Circuit Court ruling that had dismissed an ejectment action based on a later-recorded deed. The key issue was whether an unrecorded 1992 warranty deed—delivered but not recorded for more than thirty years—controlled title over a later deed recorded in 1996.
Jerry Fultz bought rural Carroll County property in 1991. In 1992, while still unmarried, he executed and delivered a warranty deed transferring the property to himself, his parents (Dale and Lana), and his sister (Janet) as joint tenants with rights of survivorship. That deed, however, was not recorded until 2023.
After marrying Joy Ann in 1994, Jerry executed a 1996 recorded warranty deed conveying the property to himself and Joy Ann as tenants by the entirety. Later, in 2017 and in 2023, Jerry and Joy Ann executed quitclaim deeds adding or transferring interests to Joy Ann’s son and daughter-in-law, the Cohicks—none of whom paid consideration.
After Jerry’s death in 2022, Lana was told to vacate the home she had long lived in. Lana and Janet sued for ejectment, asserting that the 1992 unrecorded deed was the true source of title. The trial court held that the later, 1996 deed controlled because Joy Ann was unaware of the 1992 deed and Jerry and Joy Ann paid for the property during their marriage. So the court dismissed the ejectment action.
The Arkansas Court of Appeals reversed. Under Arkansas law, a deed is effective upon delivery, even if never recorded. So title passed in the 1992 deed even though it wasn’t recorded.
BUT: there’s an important caveat. An Arkansas statute protects subsequent purchasers for valuable consideration in situations such as this—in other words, someone that has paid for the property. The parties in this case stipulated that the later deeds were between family members and no one paid for them.
So the trial court was wrong in this case, because there was no value given. If a later deed was supported by consideration, the Arkansas statute would have protected the later purchaser from the unrecorded deed. The takeaway? A deed is a deed as between the grantor and grantee; but if you want it to be effective as to the rest of the world, you need to record it.