| Ark. | May 29, 1922
(after stating- the facts). In the first place it may be said that A. J. Phillips has not filed a brief in the case, and under the settled rules of practice in this court he will be deemed to have abandoned his appeal. This leaves but a single issue raised by the appeal of D. J. Dunham, and that is the question of whether or not A. J. Phillips was entitled to recover the rents and profits after the contract for the sale of the land was rescinded.
It will be remembered that D. J. Dunham brought this suit for the purpose of having the contract for the sale of the land rescinded, and that A. J. Phillips in his answer stated that he was willing to have the contract rescinded but asked for judgment for the rents and profits of the land after the date of the sale.
The court rendered judgment in favor of A. J. Phillips against D. J. Dunham for the sum of $1,650, which was found to be one-half of the value of the peach crop which Dunham and J. O. Phillips took from the land after the sale to them.
The court correctly held that A. J. Phillips was entitled to recover the rents and profits from the land. Dunham and J. O. Phillips took possession of the land under their contract of purchase, and if Dunham wished to rescind the contract he must restore the land and account for the rents and profits. Davis v. Tarwater, 15 Ark. 286" date_filed="1854-07-15" court="Ark." case_name="Davis v. Tarwater">15 Ark. 286, and Griffith v. Maxfield, 63 Ark. 548" date_filed="1897-03-13" court="Ark." case_name="Griffith v. Maxfield">63 Ark. 548.
We are also of the opinion that the finding of the amount of rents by the chancery court is not against the preponderance of the evidence. According to appellant’s own testimony, he was interested in three different peach orchards with J. O. Phillips and received $2,200' as his share in the whole venture. While he does not think that any of this came from the A. J. Phillips orchard, he is not sure of it. At any rate, he admits that J. O. Phillips had the entire charge of gathering the peach crop and that he had nothing to do with it.
On the other hand, A. J. Phillips testified positively that he was employed to help gather the peaches and that 825 bushels were gathered which were worth $4 per bushel.
Under the settled rules of this court a finding o‘f fact made by the chancellor will not be disturbed on appeal unless it is against the preponderance of the evidence.
Therefore the decree will be affirmed.