dissenting. On July 12, 1955, stice, conveyed a parcel of land in Springdale’s Industrial Park to Vail and Rita Paschal and William T. and Carolyn Coleman. Two weeks later, Chicago Title issued title insurance to the buyers. It is not clear who paid for the title insurance or whose obligation it was to furnish title insurance. A road serving the property ran along the west side of the property and access to the property was provided by means of an easement to use that road. A twenty foot strip of the road was included in the description of the property conveyed by Welch, who did not own the fee title upon which the road was situated, but only an easement. In 1997, Paschal made a claim against Chicago Title for partial failure of title, claiming $23,500 in damages as a result of only receiving an easement rather than fee title subject to easements in favor of other users of the road. Chicago Title promptly paid this claim and sought relief from Welch because of the erroneous description in the warranty deed from Welch to the Paschals.
The doctrine of subrogation arises from considerations of equity, and in my view should be subject to equitable defenses. While Welch did not timely present its own appraisals for consideration by the court, it contends that its selling price for the land would have been the same regardless of whether the roadway was an easement or a fee title. In my view, Chicago Title was paid for title insurance and was negligent in not discovering and disclosing to the purchaser the flaw in the title. The majority allows Chicago Title to recover from Welch without consideration of Chicago Tide’s own negligence.
Therefore, I respectfully dissent, and I am authorized to state that Justice CORBIN joins in this dissent.