120 Ark. 69 | Ark. | 1915
This is an action instituted by appellant, Ed Mays, to recover a portion of the contract price which he had paid to defendant, George T. Blair, on the purchase of 125 lots in the town of Leslie. The agreed purchase price was the sum of $10,000, of which $2,000 was paid in the beginning, and a thousand, dollars paid subsequently. Appellant’s claim is that the vendor broke the contract by failing to furnish a marketable title to the lots sold; and appellees, Blair and wife, claim that they furnished not only a perfect legal title, but a marketable title, and that appellant broke the contract by refusing to take the property and pay the balance of the purchase price, and that for that reason he should not be permitted to recover. The court rendered judgment in favor of appellant for the recovery of the thousand dollars paid subsequent to the sale, but denied recovery as to the $'2,-000 paid in cash at the time the agreement was reduced to writing.
The primary question in the case is whether or not the contract was an executed one or whether it was executory. In other words, whether the instrument of writing executed by the vendor to the vendee was a deed conveying the title with covenants of warranty, or whether it was an executory contract to convey. Much depends in this case upon a solution of that initial question. In order to ascertain the exact legal meaning of the instrument, it will he set forth in full:
“Know all men by these presents: That for and in consideration of the sum of two thousand dollars to us cash in hand paid by Ed Mays, and the further sum of eight thousand dollars, to be paid by January 10, 1913, Geo. T. Blair and '0. A. Blair, his wife, do hereby grant, bargain, sell and convey unto the said Ed Mays, and his heirs and assigns, the following described real estate lying in the county of Searcy, State of Arkansas, towit: (Here follows description by lot and block numbers of the 125 lots forming the subject-matter of the transaction.) It is expressly understood and agreed that the said Ed Mays, grantee, and his heirs and assigns, shall within the time above named have right and option to pay the balance of the said purchase price, and the grantor herein obligates himself to receive the same and to make notations of the receipt of the same upon the margin of this conveyance, if presented to him for that purpose, and upon the margin of the record thereof in the office of the recorder, and to make a warranty deed with complete abstracts certified up to date. And it is further understood and agreed that should the grantee fail to do so, then all of his rights under this instrument of conveyance shall be forfeited, and the title shall revert at once to the grantor, his heirs or assigns without any other deed of conveyance or instrument of release being executed, and grantor owes grantee nothing, and grantee owes grantor nothing. The said Geo. T. Blair, grantor, hereby covenants with the said Ed Mays, grantee, heirs or assigns, that he will forever warrant and defend the title to the property above granted against the lawful claims of all persons whomsoever. And I, C. A. Blair, wife of the said Geo. T. Blair, for the consideration and purposes aforesaid, hereby join in the execution of this instrument with my said husband, and release and relinquish to the grantee, his heirs or assigns, all of my claim to dower and homestead in and to the above granted premises. Witness onr hands and seals this 16th day of August, 1912.”
Two of the Leslie heirs bought the interests of the others, and in a partition suit brought by those two heirs against appellees, a certain part of the tract was allotted to the latter in severalty, and it was described by metes and bounds. Appellees have been in possession of that part (and it is the part out of which these lots were carved), and fenced the same and remained in possession until the sale to appellant. A perfect title by limitation was acquired by appellees as against all claimants who were sui juris. "When this defect was pointed out, appellees procured deeds from three married women among the heirs, describing the land by metes and bounds, so it appears from the record that they have a perfect title by limitation. The defective description in the deeds of the Leslie heirs to appellees prevents the title from being a marketable one, and appellant was not compelled to aceept it. Those lots formed a .substantial portion of the purchase, and, unless a marketable title be furnished, the appellant can refuse to pay any more on the purchase and demand return of the amount already paid.
We think the court erred, therefore, in decreeing a return of the thousand dollars, paid :by appellant on the contract price. The court decided against appellant as to the $2,000 on the ground that that sum was paid for the purpose merely of getting the option, but we think the court was in error as to that, and that if appellant is entitled to recover anything at all, he should recover the full amount paid. The $2,000 paid at the time of the execution of the contract was a part of the purchase price, and if appellees have failed to comply with their contract by furnishing a marketable title, appellant would be entitled to recover everything he had paid. There is nothing in the contract which gives appellees any right to retain any part of the purchase money in the event that they fail to comply with their contract.
The decree is therefore reversed, with directions to dismiss the complaint for want of equity,- unless appellant elects to complete the contract by tendering the purchase price, in which event appellees should be given a reasonable opportunity to perfect the title so as to make it marketable. If, then, the appellees fail to comply in that respect, appellant can assert his right for the return of the money.
The 'cause is therefore remanded for further proceedings, if necessary, in accordance with this opinion.