109 Ark. 310 | Ark. | 1913
(after stating the facts). Appellee, by this suit, seeks specific performance of a contract for lease of land with option to purchase, which was entered into more than twenty-two years before the suit was brought, and about eighteen years after the contract had expired by its own terms. Appellee contends that at the expiration of the time for the performance of the contract, the forfeiture for a noncompliance with its terms on his part to pay the purchase money was waived, and that the contract was continued under an oral agreement with the vendor to allow appellee to remain in possession under the same terms for another five years, and at the expiration of that time that there was another waiver and a continuance of the contract for another five years, and so on until this suit was instituted, and that the time to which the contract had been extended by an oral agreement with Monroe, the owner of the land, had not expired at the time appellee instituted this suit. At the time the contract expired, appellee had not paid any of the principal of the note for the purchase money.
In Meigs v. Morris, 63 Ark. 100, we held (quoting syllabus): “In order that a court of equity may exercise its power to decree specific execution of a contract to convey land when there has been a part performance thereof, the proof of such contract must be clear and unambiguous, and must be either admitted or proved with a reasonable degree of certainty.”
The written contract between Monroe and the appellee having expired, the effort by the appellee is to extend it by parol agreement, and the rule above announced applies.
It could serve no useful purpose to discuss at length the evidence in the case. It is purely a question of fact as to whether appellee and Monroe abandoned the contract upon the failure of appellee to pay for the land, and whether, after its expiration, they agreed to enter upon a contract for leasing the lands to the appellee without an option to purchase.
We are of the opinion, after a careful consideration of the testimony, that a decided preponderance of the evidence shows that the contract giving appellee the option to purchase the land was abandoned, if not before, at least on the 12th day of December, 1901, for, on that date, it appears from the entries made in the books of Monroe by the bookkeeper, that there was a balance of $846.29 due from appellee to Monroe that was dropped from his account; that same was never paid to Monroe, or any part of it, and that after that time Pettus was never charged with any taxes on the land. It is unreasonable to conclude that Monroe would have cancelled this debt which was due him on the purchase of the land if he still intended to treat the contract for the sale of the land to appellee as in force; and the fact that after that time, no taxes were charged against him, which, under the contract, he was required to pay if the same was continued in force, shows that the contract for the sale had been abandoned. The fact, too, that there had been no improvements put upon the land by the appellee for ten years prior to the institution of the suit, tends strongly to show that appellee had abandoned his claim to ownership of the land; and the fact, established by the uneontroverted evidence, that this contract and note, yellow with age, had been relegated to the old “secretary,” where none of the live and valuable notes and papers of Monroe were kept, tends to prove that he didn’t regard the original contract as any longer in force. And a circumstance which we regard as most cogent in establishing the abandonment of the original contract, and the entering upon a contract for the lease of the land by the pasties thereafter, is the entry made by the bookkeeper of Monroe in his ledger between January 17 and August 7, 1905, as follows: “To rent above land for 1905, $250. Pettus leased above land for five years for $250 a year, and he is to keep up the place and pay taxes. ’ ’ This entry at that time shows clearly that the parties had abandoned whatever contract for sale there might have been, and had entered upon a lease for five years. Then, too, the notes that were in evidence, which were executed when the contract was entered into, under the express terms thereof, and by the endorsement thereon, showed that they were given “for rent or interest on purchase money. ’ ’ But such of the notes as were in evidence, that were executed after the expiration of the contract specified that'they .were given “for rent,” omitting the words, 1 ‘ or interest on purchase money. ’ ’
The above testimony, showing circumstances about which there is no dispute, and the testimony in the nature of documentary evidence, taken in connection with the testimony of other witnesses, shows clearly that Monroe and appellee, long before Monroe’s death, had treated the original contract for option to purchase as rescinded, and that appellee was holding the land as Monroe’s tenant, and not as purchaser. The contract having expired without appellee’s having exercised his option to purchase, as' the proof shows, and appellee having thereafter continued in possession as tenant, and not as purchaser, he can not successfully invoke the statutes of fraud against appellants, for these facts show that there was no equitable title in appellee.
The decree is therefore reversed and the cause is-remanded with directions to dismiss the complaint for want of equity.
