| Ark. | Jan 27, 1913
(after stating the facts). That there was a contract for the sale of the land from Durbin to Bell, as alleged in the complaint, is conclusively shown by certain letters of Durbin introduced in evidence. These letters acknowledge the sale of the land to Bell and asked for payments on the land. It could serve no useful purpose to set them out in detail. These letters, taken in connection with the other evidence establishing the fact that Chas. EL Bell, after the alleged contract, remained in possession of the land during Ms lifetime, and that for six or seven years after Ms death Ms widow and cMldren continued in possession, tend strongly to support the finding of the chancellor that there was a sale of the land as alleged in appellant’s complaint.
Appellee, Durbin, contends that several years after the alleged contract of - sale, and while Bell was still in possession of the land, by mutual agreement the contract of sale was rescinded, and that it was understood that Bell was to remain in possession of the land from that time on as his tenant. But there was no written contract for the rescission; there was no visible and actual abandonment of the possession of the land by Bell to Durbin under such alleged contract of rescission, and nothing to indicate any change in the possession so as to show that the property had been restored by the vendee, Bell, to the vendor, Durbin.
The contract of sale between Durbin and Bell, as alleged and proved, was absolute, and therefore the alleged rescission of the contract of sale, under a decided preponderance of the evidence, comes clearly within the statute of frauds. Friar v. Baldridge, 91 Ark. 133" date_filed="1909-06-21" court="Ark." case_name="Friar v. Baldridge">91 Ark. 133. The decree of the court was therefore correct in holding that there had been a sale of the land from Durbin to Bell, and that there had been no rescission of this sale, and in decreeing that Durbin, upon the payment to him of the balance of the purchase money and taxes, (which, with interest included, aggregated the sum of $877.58,) make to the appellants a deed.
The court also was correct in holding that Myers was not an innocent purchaser of the land from Durbin. The widow and heirs of Bell were in possession of the land at the time of the alleged sale of same from Durbin to Myers. Durbin had no interest in the land that he could convey, and Myers was put on notice by the possession of appellants, and therefore he could not have been an innocent purchaser. The decree cancelling his deed was therefore correct.
Appellee, Durbin, did not set up laches, in the court below as a defense to the suit for specific performance. The evidence was .not developed with reference to such defense, and the case was not presented on that theory to the trial court; therefore, he should not be allowed to take advantage of such' defense here for the first time. Appellants are therefore not barred by laches from maintaining their suit for specific performance.
Appellants contend that the decree was erroneous in charging them with compound interest, but we find no error in this particular.
The agreement to pay compound interest at the rate of eight per cent and ten per cent on taxes paid was in accord with the' terms of the contract of sale as a consideration for the land. Appellants are seeking a specific performance of that contract. They can not have their cake and eat it, too. If they wish the contract performed on appellees’ part, they must perform it on theirs.
Finding no error, the judgment is affirmed.