I respectfully dissent.
The decision of the majority in this case is a far-reaching one.
For the first time in the history of the state, the Arkansas Supreme Court is today saying that an investor who, in buying land, implicitly relies on an unequivocal declaration by this court that such a conveyance as he is obtaining will vest in the purchaser good title to the property he is paying for, must lose his investment if, years afterwards, this court decides to overrule the decision on which the investor properly, and necessarily, relied.
One effect of the rule being announced today is that henceforth a lawyer who examines titles to Arkansas lands must not only know what this court has, heretofore, held as to the meaning and operation of a given form of deed, but he must also know what this court will say about this same kind of deed in the future.
In my humble opinion, this rule is not good law, and it contravenes, in a dangerous way, sound public policy. Stability of contracts is a prime essential to our economy. To destroy this stability is to invite chaos.
In the case at bar it is undisputed that: *Page 664
First. Under the law of this state, as declared in 1917 by its highest court, in the case of Cole v. Collie,131 Ark. 103, 198 S.W. 710, and in other similar cases, in force on the date of the deed of the Four States Lumber Company to Harvey, and on the date of Harvey's deed to appellant Collins, the reservation of mineral rights in the lumber company's deed to Harvey was a nullity, and Harvey's deed to Collins was effective to convey the fee simple title, including all mineral rights, to Collins.
Second. Before Collins bought the land from Harvey he consulted one of the leading lawyers of Arkansas, who advised Collins, citing Cole v. Collie, 131 Ark. 103,198 S.W. 710, that the attempted reservation in the lumber company's deed to Harvey was void, and that Harvey could convey a good title to the mineral rights; and that, relying on this pronouncement of the Supreme Court of Arkansas to the effect that a mineral reservation such as was attempted in the lumber company's deed was a nullity, Collins invested his money in the land and took a deed from Harvey.
Third. Collins and Harvey both testified that Harvey understood that he was selling and Collins understood he was buying the mineral rights in this land.
So, here we have a situation where a man made an investment on the faith of what this court said the law was; and now, because, twenty-three years afterwards, this court recanted and changed its mind about the law, the investor must lose his investment.
The decision in the case of Cole v. Collie was never overruled until it was nullified by the language of this court in the case of Beasley v. Shinn, 201 Ark. 31,144 S.W.2d 710, 131 A.L.R. 1234.
I have no quarrel with the result in Beasley v. Shinn. As the court in its opinion in that case pointed out, the facts there shown justified a reformation of the deed involved so as to include therein in unmistakable terms the reservation of mineral rights that all parties thereto agreed was intended. In reality, that part of the opinion *Page 665 relating to overruling of former decisions was unnecessary, because these decisions did not stand in the way of the result that was achieved. There is no need to resort to any rule of construction when there is no dispute among the parties to a contract as to what the contract means. It would have been entirely proper for the opinion to have set forth that the court was re-examining the rule laid down in Cole v. Collie, supra, and other kindred cases; and thus the bar and the citizens would have been put upon notice that the rule might be changed in the future, thereby precluding blind reliance upon it by investors. Frequently, in the past, when the court purposed to change a rule, even in matters of procedure, it has been deemed proper to give some warning of the impending change. See Anheuser-Busch, Inc., v. Manion,193 Ark. 405, 100 S.W.2d 672.
A rule of this court, under which a particular construction is accorded to a deed whereby real estate is conveyed, if not a rule of property, is certainly such a rule as vitally affects property rights, and it ought never to be suddenly changed without some sort of warning that such a change is being contemplated. Therefore, even though this court in the opinion in the case of Beasley v. Shinn, supra, did not limit its operation so as to prevent its being retroactive in effect, I think we should so construe it, especially insofar as it affects the rights of one who, like the appellant Collins, went to the trouble of ascertaining what this court had said and relied thereon, in spending his money.
It is conceded that, if the decision in Cole v. Collie, supra, had been made in construction of a statutory or constitutional provision, it would have become a rule of property and its overruling could not affect adversely investments made on the faith of it. In such a case it is held that the decision becomes in reality a part of the law and an overruling thereof cannot affect vested rights because of constitutional bans on retroactive laws. But it is held by the majority that no such restraint on the power of the court exists when this court purposes to *Page 666 overrule a decision on a question of common or general law.
Why should there be any difference in the two situations? The reason the framers of the constitution saw fit to forbid retroactive statutes was a realization of the stark injustice of such legislation. They did not believe that, once men had invested their savings on the faith of the law, they should be impoverished because legislatures might afterwards see fit to alter the law. Ought not this court have the same regard for stability and the same zeal to create and maintain confidence as inspired the wise men who wrote our constitution?
Many rules of great importance in conveyancing depend for their existence, not on legislative enactments, but on decisions of the Supreme Court of Arkansas construing the language of deeds and other conveyances. Every day trades are made and property changes hands under contracts that are made on the faith — not of any statute — but of what the judges of this court have solemnly said these contracts mean — what obligations are imposed by them and rights are acquired by virtue of them. Examples of this statement may be multiplied. One example is the effect, under the decisions of this court, of a conveyance of land to a man and his wife. Without any statutory authority whatever this court has, time and again, held that by such a deed there is created a joint tenancy with right of survivorship, instead of a tenancy in common, as would be the case if two persons not husband and wife were the grantees. The principal reason for the genesis of this rule was the ancient idea of merger of identity between those who took the vows that made them man and wife. Now, this unity of spouses has largely been annihilated by constitutional provisions, statutes and court decisions.
Should this court some day come to the conclusion that, since the ancient reasons for the rule construing into existence a joint tenancy, with survivorship, under such a deed have failed, the rule itself should fail, would this be another case for the, retroactive enforcement of *Page 667 the overruling decision? Would all those investors who have been buying from the surviving joint tenant, because the Supreme Court of Arkansas has repeatedly said that the surviving joint tenant had complete title, awaken to find that their confidence had been misplaced and that in reality they owned only half of the title?
Dealing with this very question, the Kentucky Court of Appeals, in the case of Mutual Life Insurance Company v. Bryant, 296 Ky. 815, 177 S.W.2d 588, 153 A.L.R. 422, said: "It is insisted for appellant that in the event we overrule the minority rule and adhere to the majority rule, the opinion should be given a retroactive effect and applied to all such contracts entered into subsequent to the opinion in the O'Brien case, 155 Ky. 498,159 S.W. 134, because the overruled opinions do not involve the construction of any statutory or constitutional provision, but are mere decisions expressive of general or common law. . . . Since the decisions of a court of last resort is the law of the state, whether it be the construction of a statutory or constitutional provision, or an expression of general or common law, we are not favorably impressed with the vague distinction drawn by the authorities, supra."
The majority, to sustain its position, adopts and applies the philosophy expounded by Blackstone and other early English jurists to the effect that, when a court finds that its previous decision is erroneous and overrules it, the earlier decision must be regarded as never having existed. In other words, according to the majority, the law, as declared by the later decision has always existed in some Utopia, beyond the ken of mortals, whence it was evoked and put in operation by an enlightened court — and the previous erroneous decision should be deemed as never having had any existence.
Mr. Justice CARDOZO, in discussing the subject here involved, said in the case of Great Northern Railway Company v. Sunburst Oil Refining Company, 287 U.S. 358,53 S. Ct. 145, 77 L. Ed. 360, 85 A.L.R. 254: "A state in defining the limits of adherence to precedent may *Page 668 make a choice for itself between the principle of forward operation and that of relation backward. It may say that decisions of its highest court, though later overruled, are law none the less for intermediate transactions. Indeed there are cases intimating, too broadly (cf. Tidal Oil Company v. Flanagan, 263 U.S. 444, 68 L. Ed. 382, 44 S. St. 197, supra), that it must give them that effect; but never has doubt been expressed that it may so treat them if it pleases, whenever injustice or hardship will thereby be averted. . . . On the other hand, it may hold to the ancient dogma that the law declared by its courts had a Platonic or ideal existence before the act of declaration, in which event the discredited declaration will be viewed as if it had never been, and the reconsidered declaration, as law from the beginning. . . . The alternative is the same whether the subject of the new decision is common law."
Chancellor KENT, in the case of Lyon v. Richmond, 2 Johns. Chr. 51, said: "A subsequent decision of a higher court, in a different case, giving a different exposition of a point of law from the one declared and known when a settlement between parties takes place, cannot have a retrospective effect and overturn such settlement, . . . and, to permit a subsequent judicial decision in any one given case, on a point of law, to open or annul everything that has been done in other cases of the like kind, for years before, under a different understanding of the law, would lead to most mischievous consequences."
In the case of Hill v. Atlantic North Carolina Railroad Co., 143 N.C. 539, 55 S.E. 854, 9 L.R.A., N.S., 606, it was said: "The people are supposed to have confidence in their highest court, at least to the extent of ascribing to it the virtue of consistency and a desire to see that by no lack of stability in its decisions shall any citizen be jeopardized or prejudiced in his rights because he has simply acted upon the supposition that what the court has so solemnly determined will again be its decision upon the same state of facts, or that at least *Page 669 if it does change its mind, his rights and interests will be thoroughly safeguarded."
"Parties have the right to act upon the decisions of this court in acquiring titles and such titles will not be disturbed or the parties prejudiced by a subsequent reversal of the decision." Jones v. Williams, 155 N.C. 179,71 S.E. 222, 36 L.R.A., N.S. 426.
The Georgia Court of Appeals, discussing the effect of decisions overruling previous decisions of the same court, in the case of Mutual Life Insurance Company of New York v. Barron, 70 Ga. App. 454,28 S.E.2d 334, said: "But there is an exception to the general rule, to-wit: `An overruling decision cannot operate retrospectively so as to impair the obligations of contracts entered into, or injuriously affect vested rights acquired, in reliance on the overruled decision.' 21 C.J.S., Courts, 194, p. 329. . . ."
This was said by the Supreme Court of Oklahoma in the case of Oklahoma County v. Queen City Lodge No. 197, I. O. O. F., 156 P.2d 340: "Though some courts and legal minds differ, we find much respectable authority to the effect that the overruling decision may, in the legal and equitable discretion of the court, be made to operate prospectively only. The rule is almost universal in the protection of property and contract rights. . . ."
In the case of Jones v. Woodstock Iron Company,95 Ala. 551, 10 So. 635, the Supreme Court of Alabama had to deal with almost the identical problem that we have in the instant case. In many of the earlier decisions of the Alabama court the authority of the chancery court to vest, by decree, the legal title to property was upheld. A later decision, Prewitt v. Ashford, 90 Ala. 294,7 So. 831, declared that the chancery court did not possess such authority. In the Jones case, supra, the overruling decision was urged to defeat a title acquired while the earlier rule was in force. Refusing to give the overruling decision this effect, the court in that case said: "This early decision has become a rule of property, and to hold *Page 670 otherwise now would upset a great many legal titles. . . ."
I conclude that sound authority, as well as reason and justice, dictates that, when a citizen invests his money on the assurance by the highest court of the state that he is getting good title, he ought not to be deprived of the property so acquired by him simply because the same court at a later date changes its mind and overrules the decision relied on by the investor.
I am authorized to state that Mr. Justice HOLT and Mr. Justice MILLWEE join in this dissent.