| Ark. | Dec 17, 1904
(after stating the facts.) The question to be determined in this case is what amount the purchaser of the property of the firm of Tillar & Wilson at a receiver’s sale is entitled to have deducted from the purchase price agreed to be paid therefor on account of the failure of the title to the Clarke brake, that being a part of the property sold and a part of that for which the price was to be paid. Neither side asks that the sale be set aside, and it is conceded that under the circumstances the purchaser is entitled to have the purchase price abated to the extent that the inclusion of the Clarke brake enhanced the price which the purchaser agreed to pay for the whole property. There is no controversy about these points. Now, as no special price was named for this particular part of the property, the title of which has failed, the extent to which its sale enhanced the purchase price of the whole must be ascertained by finding what the proportion of its 'actual value is to the value of the whole property sold; then a like proportion of the whole purchase price will represent the amount to be deducted from that price, on account of the failure of the title to the Clarke brake.
The order of the court under which the sale was made directed the parties to convey to the purchaser the property to which they or either of them held title. But this was nothing more than the means by which the court sought to divest the title of the property from the parties who held the title, and to vest it in the purchaser at the sale made under the decree. It did hot amount to an order that these parties should warrant the title to this property, but was simply an order that they should convey what title they had. But, as the parties have failed to convey a portion of the property to the purchaser as directed by the court, for the reason that they have discovered that they do not own such property, they admit that the purchaser is entitled to a reduction pro tanto upon the amount of its bid for the whole property. 17 Am. & Eng. Enc. of Law (2d Ed.), 1021-1023.
As this brake, which the parties failed to convey to the purchaser, was sold in bulk along with the other property, the court below allowed a rebate on the purchase price to the extent that the evidence showed that the price was enhanced by the inclusion of this brake in the bulk of the property sold. As before stated, we think that this was correct, for it was not a question of how much this brake cost the firm of Tillar & Wilson, but how much it cost the purchaser at the receiver’s sale; in other words, the question was to what extent its sale enhanced the price the purchaser agreed to pa)c There is much conflict in the evidence as to the value of this Clarke brake, and as to the effect on the price made by its inclusion in the sale; but we see no ground for interfering with the finding of the court on that point, and it must stand.
The court ordered that the amount to be deducted on account of the failure of the title to the Clarke brake should be credited on the note for the purchase price that would first fall due. But as the inclusion of this property caused the purchaser, under the terms of the sale, to pay a greater proportion of the price in cash than they would otherwise have been required to do, it seems to us that it would have been more equitable to have credited the amount on the note last due. As both notes are now due, we suppose that this is a matter no longer of any importance; but, if desired, the decree may be so modified to that extent. In all other respects it is affirmed.