103 Ark. 550 | Ark. | 1912
(after stating the facts.) This is a suit to enforce the specific performance of an oral agreement to convey real estate, and not a suit to redeem from a mortgage. “Specific performance enforces a contract by giving a party something to which he had not title before. Redemption gives a party nothing new, but enforces his right to repurchase .his own, incumbered for a debt. Redemption restores the parties to their former rights of property. Specific performance gives them new rights to property.” Williams v. Williams, 50 Wis. 311-16, 6 N. W. 814.
Section 5420 of Kirby’s Digest, giving a mortgagor the right of redemption, was passed May 8, 1899. The property in question in this case was sold under mortgage foreclosure prior to the date of the passage of this act. The .foreclosure proceedings were had and. the sale made to Judge Jones in October, 1897. Hence, at the timé the alleged contract, which is the basis of this suit was made between Emily Phillips and W. D. Jones, the title had been divested out of her by the foreclosure proceedings in the chancery court, and she had no right of redemption. The title to the property at that time was vested in W. D. Jones by virtue of the sale to him under the decree of foreclosure. It follows then that this is a suit to enforce the specific performance of an alleged oral contract for the purchase of real estate. The plaintiff states that she was in possession of the property at the time the alleged oral contract was made, and paid $60 on the purchase price. The law applicable to the case before us is aptly stated as follows:
“As to the contract itself, the rule is that it must be clearly proved; its terms must be definitely shown. We do not conceive that the matter must be proved beyond a reasonable doubt in the criminal sense, but fairly made out by decided preponderance in a manner to be satisfactory, not only as to the fact that a contract was made, but also as to the precise terms.” Moore v. Gordon, 44 Ark. 334.
In the case of Fielder v. Warner, 78 Ark. 158, this principle was stated as follows:
“A court of equity can not make a contract for parties and then decree its specific performance, in order to carry out its notion of what the abstract justice and right of the case as disclosed by the proof demands. The court will only decree specific performance when the contract itself is clearly established by a preponderance of the evidence.” The court then approved the quotation we have made from the case of Moore v. Gordon. See also Tatum v. Bolding, 96 Ark. 98.
In the application of these principles to the facts in the present case, we are led to the conclusion that the decision of the chancellor was correct. It is true that the plaintiff, Emily Phillips, and her daughter, Eliza Phillips, testified that Judge Jones told Emily Phillips that he had bought her place in for her, and would give her thirteen months within which to pay him his money back. But this testimony on their part is flatly contradicted by Judge Jones. It is claimed by counsel for the plaintiff that her testimony is corroborated by the receipt which was given by Judge Jones at the time she paid him the $60, but we do not agree with their insistence in this respect. The receipt simply states that he received $60 on account of mortgage. Now, Judge Jones testifies that he only agreed to sell her thirty feet off of the south end of the property which he had purchased at the mortgage foreclosure sale, and in this respect we think that he is corroborated by other facts and circumstances in the case. Judge Jones states that the remainder of the lot, except the thirty feet off of the south end, was incumbered by a mortgage to the Building and Loan Association for something near its value, and for this reason was not included in the oral contract of sale. It will be noted that Eliza Demby conveyed to her daughter, the plaintiff, the thirty feet off of the south end of the lot in 1890, and that deed was at'that time filed for record. It is true that in 1893 Eliza Demby mortgaged the whole lot to the Building and Loan Association; but, as she already parted with the title to the south end of the lot, Judge Jones was right in considering that this property was not properly included in the mortgage. When the mortgage of the Building and Loan Association was foreclosed in 1901, the south end of the lot was exempted from the sale, and only the remainder of the lot was sold in satisfaction of the mortgage. In 1896 Eliza Demby conveyed the north end of the lot to her daughter, and this conveyance was, of course, subject to the mortgage she had previously executed to the Building and Loan Association. Hence, we say that the testimony of Judge Jones that only the thirty feet off of the south end of the lot was embraced in the oral contract of sale to the plaintiff was reasonable and consistent with the other facts and circumstances in the case. He says, that at that time it was considered that the north end of the lot was mortgaged to the Building and Loan Association for its full value, and it was not until afterwards that it increased in value.
It is next insisted by counsel for the plaintiff that the testimony of the plaintiff in regard to the oral contract of sale is corroborated by the testimony of the two daughters of the plaintiff to the effect that their mother in September, 1898, tendered to Judge Jones the balance of the purchase money claimed to be due on the place. This testimony does not have the effect as independent evidence of establishing the terms of the contract of sale. Judge Jones says that no such tender was made by the plaintiff, and the testimony could only have the effect of contradicting his evidence in this respect, and could not operate as independent testimony to establish the contract as testified to by the plaintiff. In other words, their testimony, did not in any wise tend to show whether the oral contract of sale was that testified to by the plaintiff or that testified by the defendant Jones.
The plaintiff is not asking for a specific performance of the contract as testified to by Judge Jones. She is asking for a specific performance of the contract for the conveyance of the whole lot.
After a careful review of the evidence and all of the facts and circumstances considered together, we do not think that she has established the contract which she now seeks to have specifically performed by a decided preponderance of the testimony. She is therefore, not entitled to a decree for specific performance, 'and the chancellor did not err in dismissing her complaint for want of equity.
The decree will be affirmed.