77 Ark. 305 | Ark. | 1905
(after stating the facts.) Under a fair construction of the contract, considering the language employed, the' subject-matter thereof, the circumstances surrounding the transaction and the contemporaneous execution of a deed with convenants of warranty of title to the lands about which the parties were contracting, it must be held that appellee undertook thereby to give appellant, within the time specified, a title not necessarily perfect, but such title as he (appellant) should be willing to accept as satisfactory. The law does not favor forfeitures, and will, when a reasonable interpretation of the contract admits of it, adopt such construction as will prevent á forfeiture. Bain v. Parker, ante, p. 168; Little Rock Granite Co. v. Shall, 59 Ark. 408.
Of course, appellee would be liable to appellant, 'upon the covenant of warranty in the' deed, for any damages' sustained by the' latter on account of failure of 'the titlé to ahy of' the lands conveyed; but a different question arises on the construction of the contract under consideration, and we hold that if appellee has furnished appellant a title which the latter agreed to accept as satisfactory, he is entitled to recover the part of the purchase price retained under the contract. Appellant cannot, under those circumstances, insist on a forfeiture because the title is not found to be perfect, but must be held to have elected to waive the forfeiture, and to rely upon the covenants in the deed for reimbursement for any damages which may be sustained in the future by reason of failure of title.
Appellant contends that the title is neither perfect, nor satisfactory to him, for the reason, among others, that, according to the provisions of the act of March 28, 1899, the confirmation decree did not become final until three years after its rendition. Kirby’s Digest, § 657.
Appellee testified, in his own behalf, that when the contract in question was executed he was not advised of the enactment of the act of 1899, and thought that, part of the land being held under tax title, he would be compelled to wait three years longer, and pay taxes three years before he could confirm under the former statute. Kirby’s Digest, § § 661-675. Hence the stipulation in the contract for the time limit of four years; that when the later statute and the fact that none of the land was held by tax title were called to his attention, he informed appellant of his intention to procure a confirmation under that statute. He further testified that appellant then agreed to accept the confirmation as a satisfactory title, and signed and verified the petition for confirmation. He did not say that appellant expressly agreed, in so many words, to accept the confirmation, but, taking his whole testimony together, it is sufficient, if taken as true, to show an agreement to that effect. It is also shown that appellant entered into a contract for the sale of all timber on the land. Appellant denied that he ever agreed to accept the confirmation as satis-^ factorily perfecting the title. He said that he did not either accept or reject it until after the decree was rendered, when he submitted the matter to his attorneys, and upon their advice rejected the title as unsatisfactory.
The fact that appellant signed and verified the petition for confirmation, • without objection to that procedure, may be considered as corroborating, in some measure, the testimony of appellee ; but at all events it cannot be said that the testimony preponderates in favor of appellee. The most that can be said in his favor is that the testimony is evenly balanced on this issue. On this condition of the proof we must, according to the repeated decisions of this court, uphold the findings of the chancellor. His findings of fact will not be disturbed by this court unless against the preponderance of -the evidence. Du Hadaway v. Driver, 75 Ark. 9; Sulek v. McWilliams, 72 Ark. 67; Greer v. Fontaine, 71 Ark. 605; Mooney v. Tyler, 68 Ark. 314.
Appellant sets forth alleged defects in the proceedings and decree for confirmation as reasons for his refusal to accept the procurement of the decree as a satisfactory'compliance with the contract, but this, too, falls within the rule announced that, the chancellor having found that he agreed to accept the decree with the knowledge or opportunity of ascertaining what its legal effect would be, we must follow his findings of fact, when not against the preponderance of the testimony. ■
Decree affirmed.