| Ark. | Jun 7, 1909
(after stating the facts.) The appellee’s complaint should have been dismissed for want of equity. For, conceding that appellee under the will of his grandfather was the owner of the land in fee at the death of his father (Wilmans v. Robinson, 67 Ark. 577), yet the decided preponderance of the evidence shows that he had sold same to appellant. We have given in the statement of facts the substance of all the evidence that relates to the sale of the land by appellee to appellant, and practically all of it, except appellee’s own testimony, shows that he made such sale. Appellant testifies that he made the contract with appellee and his mother to purchase the land from them for a consideration of fifteen hundred dollars, and that they afterwards met him at the store of Wolff & Goldman for the purpose of consummating the trade, i. e., making him a deed and getting the purchase money. He shows that he met them there, and that he performed his part of the contract by paying the purchase money, and that Mrs. Mary V. performed her part by signing the deed, and that appellee was present ready and willing to sign, but was dissuaded from doing so by the advice of the attorney of appellant that it was unnecessary. The attorney was of the opinion that appellee had no title, and therefore -it was unnecessary for him to sign. But the proof shows that he was there for that purpose. It is clear that the deed would have been signed by him but for the mutual mistake of law on his part and on the part of appellant caused by the opinion of counsel. The proof shows that appellee fully intended to sign the deed and thereby convey all the interest he might have. Equity looks on that as done which ought to have been done. “Equity imputes an intention to fulfill an obligation.”' These familiar maxims of equity are sufficient authority for denying to appellee under the evidence in this record the relief which he seeks, and for granting to appellant the relief sought by his cross-complaint. Smith’s Principles of Equity, pp. 15, 16; 1 Pom. Eq. Jur. § 363, et seq., 368; Fetter on Equity, §§ 10, 11.
The proof clearly takes the case out of the operation of the statute of frauds, for appellant paid the purchase money and went into possession under his contract of purchase made with appellee and his mother, and made permanent and valuable improvements. Arkadelphia Lumber Co. v. Thornton, 83 Ark. 414, and cases there cited.
The decree is therefore reversed, and the cause is remanded with directions to enter a decree in, accordance with this opinion, decreeing the title to the land in controversy to be in, appellant, and granting the prayer of his cross-complaint for specific performance, and dismissing appellee’s complaint for want of equity.