143 F. 865 | 8th Cir. | 1906
This appeal challenges a decree for the foreclosure of a vendor’s lien for $500 upon the undivided half of the Capitol Hotel and its grounds, situated in Okmulgee in the Indian Territory, and the question it raises is whether the purchase price of the property was $2,000 or $2,500. Smith, the vendor, conveyed one undivided half of this property to George M. Griffin and Harry W. Griffin and the other undivided half to W. E. Gentry, on March 23, 1901, by a deed which recited a consideration of $2,500. The Griffins had already paid him $50 on account of the purchase price and, at the time of the delivery of the deed, he took from them their promissory note for $700, payable on September 23, 1901, and a mortgage upon other property to secure its payment, and he obtained from Griffin $1,250 in cash which made in the aggregate $2,000. He testified, and George M. Griffin denied, that the latter verbally agreed to pay him $500 more for the property in a few days so as to make the purchase price $2,500. His agent, Thornburg, testified that about the 7th of March, 1901, Griffin had told him to agree to pay Smith $2,500 for the property, that he had made that agreement in behalf of Griffin and that the latter had admitted that $2,500 was the agreed price of the property. Another witness testified to a like admission. Griffin denied that he had ever given any authority to Thornburg to agree to pay $2,500 for the property, denied the alleged admissions and testified that the agreed price of it was $2,000. The notary public who took the acknowledgment of the deed gave testimony to the effect that on the day it was delivered the vendor told him that he was to receive $2,000 for the property. There was no written evidence except the recital of the consideration in the deed to the effect that the purchase price of the property was $2,500. On the other hand, the record contains a written contract between the
The taking by a vendor of an independent security for the payment of the purchase price of the property he sells, such as a negotiable, note of a third party, or a mortgage or pledge of other property, is prima facie evidence of a waiver of his lien, and it casts upon him the burden of proving its subsequent existence. Cordova v. Hood, 17 Wall. 1, 6, 21 L. Ed. 587; Richardson v. Green, 46 Ark. 267, 270; Springfield & Memphis R. R. Co. v. Stewart, 51 Ark. 285, 10 S. W. 767; Mayes v. Hendry, 33 Ark. 240, 245; Lavender v. Abbott, 30 Ark. 172, 178. Our faith in questionable stories has been strengthened by constant exercise until it is sometimes triumphant. But in view of the facts that the vendor in this case made a written agreement to sell this property to the Griffins for $2,000, that he accepted $50 in part payment of its purchase price and signed a contract of extension of the time of payment which named'no new price, that, when he made his deed, he took the balance of the $2,000 in the form of $1,250 in cash from Gentry and the note and mortgage of the Griffins upon other property for $700 and that the two payments made by the latter before their note fell due were not applied in part satisfaction of the additional $500 which the vendor insists had been due to him ever after March 23, 1901, but were indorsed upon the note which was not yet due, it has proved too great a strain upon our credulity to believe that this vendor conveyed his property to the Griffins without securing any mortgage back upon it, or note, due bill or other written evidence of their liability for the additional amount which he claims was due him for the transfer. A careful reading and analysis of all the evidence has forced our minds to the conclusion that the agreed price of this property was not $2,500, but $2,000. The decrees of the courts in the ’ Indian Territory must therefore be reversed and the case must be remanded with instructions to dismiss the bill. It is so ordered.