136 Ark. 405 | Ark. | 1918
The record in this case is a voluminous one, and many questions of fact of more or less relevancy are discussed in the elaborate briefs filed in the case. The controlling facts, however, may be summarized as follows:
On February 2,1904, Mrs. M. B. Levy owned a tract of land in Jefferson County, and on that date, by her warranty deed, in which her husband joined, conveyed this land to the appellant, Jefferson Davis, for the sum of $5,000, to be paid in eight installments of $625, the first payment to be made November 1, 1904. The cash purchase price was $3,000, but, because of the length of time allowed for payment, $2,000 was added to include interest, profits, etc., but it was agreed that the notes were not to draw interest until after maturity. The testimony is conflicting as to the kind of instrument which should evidence the agreement, and it is contended by appellant Davis that no mistake was made in the preparation of the deed, and that the instrument executed was the instrument intended. On the other hand, it is insisted that the contract between the parties did not call for a deed, and that a mutual mistake was made in the execution of an instrument of that character, instead of a contract of lease with an option to purchase with an obligation to convey the land upon the completion of 'the payment of the purchase money. The instrument prepared, however, was an ordinary deed, with a clause of defeasance to the effect that the conveyance should become void in case the grantee failed to pay any installment of the purchase money when the same became due, and that, in the event of such default, the grantor should become the landlord and the grantee would become the tenant of the grantor, but, in the event the purchase money should be subsequently paid, the grantee would be entitled to credit for such payments as purchase money.
The appellant paid only one note, but he raised a crop during the year 1905. In the meantime Mrs. Levy had sold the notes to the Pine Bluff Trust Company, through the aid of Judge James Gould, who, to induce the trust company to purchase them, had guaranteed their payment. .And in March, 1906, the Levys and the trust company joined as plaintiffs in an action of unlawful detainer to recover the possession of the land. In this suit it was alleged that the nonpayment of the note due in November, 1905, had defeated the deed, and that Davis thereupon became a tenant. No defense was made to this suit, and a default judgment was obtained for the possession of the land, but damages for the rents were waived. In the present litigation, much testimony was taken as to the value and disposition of this crop.
In September, 1906, a writ of possession issued, and Judge Gould, who was then the sheriff, caused Davis to he dispossessed. Just here the testimony becomes irreconcilably conflicting. Judge Gould testified that when he took charge of the land and crop, he called on Davis to perform his contract of purchase, and offered to assist him in doing so, and also offered to assist him in securing advances to enable him to make a crop the ensuing year. But Davis refused to proceed with his contract, and announced his intention to abandon any claim he had to the land . This testimony was contradicted by Davis, who stated that he never abandoned his claim to the land, but, on the contrary, he has asserted his title to the land at all times nnd to the extent of his ability has attempted to enforce this title. Judge Gould obtained a deed to this land from the Levys in April, 1907, and in June of that year, conveyed it to George A., C. B. and W. J. Shelby, who immediately went into the possession of the land,- and have since continuously claimed title thereto.
While the unlawful detainer case was pending, another suit was filed in the chancery court by the trust company and the Levys against one Ji S. McDonnell to enforce a landlord’s lien on the crop grown by Davis during the year 1905 and which Davis had disposed of to McDonnell. This suit was brought upon the theory that Davis was a tenant in possession under a contract of purchase whose tenancy had expired by reason of the failure to make the payments contracted for. During the progress of this litigation, the trust company reassigned the notes to the Levys, this being done, apparently, because of the non-assignability of the landlord’s lien. There was a decree in favor of McDonnell, which was affirmed by this court upon appeal, the court holding that the sale from Mrs. Levy was complete upon the execution of the deed, and that the stipulation therein contained that if the vendee failed to pay the purchase money the conveyance should be void and the vendee should be liable thereafter in the sum named as rent to be paid annually, was a repugnant condition and therefore void. See Levy v. McDonnell, 92 Ark. 324.
In April, 1909, appellant Davis filed suit in the chancery court to recover the land and to have the value of the 1905 crop ascertained and applied to the payment of the purchase price. An answer was filed which put in issue all the material allegations of the complaint. While some depositions were taken, that cause appears never to have been prepared for trial, and, finally, in January, 1912, the court made an order that it “be dropped from the docket, with leave to reinstate.” Three years later, or in June, 1915, Davis filed a motion to reinstate the cause, and an order to that effect was made, whereupon the cause was redocketed and then dismissed. There is conflicting testimony concerning the circumstances under and the purposes for which the court made the order restoring the cause to the docket.
After dismissing this chancery suit, Davis brought suit in ejectment against George A. and Ó. B. Shelby and the devisees of W. J. Shelby, who had died in the meantime. Over appellant’s objection, Judge Gould was made a party defendant, and he filed an answer and cross complaint, and the cause was transferred to the chancery court.
The decree contains findings of fact that the Shelbys were innocent purchasers of the land; that the plea of res judicata should be sustained; that Davis was es-topped from asserting any claim to the land; that the cause of action was barred by limitations; that tbe order of the chancery court made and entered January, 1912, retiring tbe cause there pending from tbe docket with leave to reinstate, was in effect a dismissal of tbe suit without prejudice, and that tbe suit was reinstated on January 5,1915, only for tbe purpose of entering a formal order dismissing it, and that Davis was not entitled to recover tbe land or any rents or profits derived therefrom. Tbe decree also granting tbe prayer of tbe cross complaint for reformation of tbe original contract for tbe sale of tbe land, so as to express an agreement on tbe part of Levy and bis wife to sell tbe land to Davis upon tbe condition that all of tbe purchase money should be paid at the time and in the manner therein expressed, and that tbe relationship of landlord and tenant should exist until all such payments bad been made.
Much testimony was beard upon each of these findings, but no useful purpose would be served in setting it out, as we have concluded that the finding of tbe court below that Davis by bis conduct bad estopped himself to maintain this suit is not clearly against tbe preponderance of tbe evidence, and it becomes unimportant, therefore, to determine tbe correctness of tbe other findings of fact.
It is shown that Judge Gould became connected with this transaction by bis action in assisting tbe Levys to sell the purchase money notes to tbe trust company, and that be bad guaranteed the payment of tbe notes. Tbe testimony also shows that Davis bad abandoned bis claim of title to this land after be bad defaulted in tbe second payment until tbe decision of this court in tbe case of Levy v. McDonnell, supra. But, before tbe decision in that case, a judgment bad been rendered by default in tbe circuit court in tbe unlawful detainer case, and, as a result pf tbe judgment in this action of unlawful detainer, Judge Gould was called upon to make good bis guaranty to tbe bank. It is insisted that this is not true, because tbe trust company, through Judge Gould, bad endorsed tbe notes back to Mrs. Levy without recourse, but this endorsement is explained as having been made to reassign the landlord’s lien which the parties through Mrs. Levy had under the terms of the deed by reason of Davis’ default in his payments. Judge Gould testified that he did not want the land, and that he asked Davis to perform his contract, and offered to assist him in doing so, and Col. S. M. Taylor, who was of counsel in the case, fully corroborated that testimony. Judge Gould’s attitude, then, was that, to make himself whole, or as nearly so as possible, he had the Levys convey the land to him, and ho later sold, as stated above, to the Shelbys. It is fairly inferable,, from all the testimony in the case, that, at the time of the execution of the deed to Gould by the Levys, Davis did not then regard himself as the owner of the land, and that both he and Judge Gould, as well as the Levys, believed that Davis had forfeited his rights by his default in meeting his payments and by suffering judgment to go against him by default in the unlawful detainer case. As has been stated, Davis denies this, but we think the testimony warrants the finding which the court made.
Under the facts stated, we are of the opinion that Davis should not now be heard to question the Shelbys’ title.
In the case of Shields v. Smith, 37 Ark. 47, this court quoted with approval from the case of Union Mutual Insurance Co. v. Mowry, 6 Otto 544, the following statement of the law: “The doctrine of estoppel is applied with respect to representations of a party to prevent their operating as a fraud upon one who has been led to rely upon them. They would have that effect if a party, who, by his statements as to matters of fact, or to his intended abandonment of existing rights, had designedly induced another to change his conduct or alter his condition in reliance upon them, could be permitted to deny the truth of his statement, or enforce his rights against his declared intention of abandonment.”
See also, Baker-McGrew Co. v. Union Seed & Fertilizer Co., 125 Ark. 146; Fagan v. Stuttgart Normal Institute, 91 Ark. 141; Thompson v. Wilhite, 131 Ark. 77.
The decree of the chancellor will, therefore, be affirmed.