Ferguson v. Guydon, 230 S.W. 260

Ferguson v. Guydon

230 S.W. 260

Ark.

1921

Check Treatment

Hart, J.

(аfter stating the facts). It may be stated at the outset that S. W. Ferguson and J. L. Simpsоn obtained a decree of foreclosure of the unpaid рurchase money against I. W. Carter in the same chancery court in whiсh the present suit is pending. This decree was obtained by the publicatiоn ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of a warning order against Carter, and the decree was enterеd of record before the present suit was instituted. Jesse Guydon was not а party to that suit and is in no wise bound by the decree entered therein. His rights must be determined by the record in the present case.

The record in the present case shows that the deed from S. W. Ferguson and J. L. Simpson to I. W. Cаrter was executed on the 24th day of February, 1919, and the deed recitеs unpaid purchase money in the sum of $300 due by Carter which is evidenced by his promissory note of the same date as the deed, and due on the 20th dаy of November, 1919. Jesse Guydon also obtained his deed from Carter on thе 24th day of February, 1919. According -to the testimony of himself and his father, they had heard that ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍S. "W. Fergnson had a lien on the property. They met Fergnson on the street and asked him if he had a lien on the property for the unpaid par-chase money, giving as a reason for asking that Jesse contemplated purchasing it. Fergnson replied that he had no lien, and thаt they would he safe in purchasing the property so far as he was сoncerned. This testimony, if true, is sufficient to create an equitable estoppel in favor of Jesse Gruydon against the defendants, S. W. Ferguson and J. L. Simpson.

It has been well said that an equitable estoppel requirеs as to the persons against whom the 'estoppel is claimed, opportunity ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to speak, duty to speak, failure to speak, and rеliance in good faith upon such failure. Fagan v. Stuttgart Normal Institute, 91 Ark. 141; Cox v. Harris, 64 Ark. 213; Rogers v. Galloway Female College, 64 Ark. 627; Gill v. Hardin, 48 Ark. 409, and Thompson v. Wilhite, 131 Ark. 77.

This rule was recognized in Scott v. Orbison, 21 Ark. 202, wherе the court held that if a vendor, having an equitable lien upon land for thе purchase money, induces a third person to believe that he does not look to ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the land, but to other means for payment, and, in cоnsequence thereof, he purchased the land, the vendor will be estopped from setting up his vendor’s lien.

Again this rule was recognized in a vеndor’s ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍lien case in Wilson v. Shocklee, 94 Ark. 301, but the estoppel was deniеd because the facts did not warrant its application. But it is strongly insisted that the evidence is not sufficient to warrant a finding in behalf of the plaintiff in this respect. Counsel for the defendants point to the fact that Fergusоn in positive terms denied that he had made any such representations to Lee and Jesse Gruydon, or that he would have any motive in saying that hе had no vendor’s lien on the property for the unpaid purchasе money when, as a matter of fact, he did have such a lien.

There does not seem to have been any motive on either side to havе deceived the other. It would have been easy for Jesse Guydon to have protected himself if he had known that Carter owed Ferguson $300 аs a balance of the purchase money of the property. He could liave seen that the money lie paid Carter in November, 1919, was applied by the latter toward the payment of the unpaid purchase money due to Ferguson.

We are confronted with a finding in behalf of the plaintiff by the chancellor, and it can not be said that his finding is against the preponderance of the evidence. According tо the uniform current of decisions in this State, the findings of fact made by a chancellor will not be disturbed on appeal unless they are against the preponderance of the evidence.

Therefore the decree will be affirmed.