55 Ark. 414 | Ark. | 1892
There is no evidence to warrant the conclusion that the¡ parties were partners in buying and selling real estate. The-only route by which Robbins can arrive at an equity in the-land is to adduce from the evidence clear and satisfactory-proof that Kimball made use of his means in making the purchase, and thereby establish an equitable interest in the land through the medium of a resulting trust.
It is material, therefore, to review the conflicting and recriminating testimony, in which the record abounds, only for the purpose of ascertaining whether any money of Robbins-went into the purchase of the land. Beyond that it need not be noticed.
It is certain that Kimball purchased the right to acquirer the title to the lands—an option, as the parties term it—for the sum of $5000, and that Robbins paid no part of it;. also, that the then owner of the land executed a deed to Kimball in pursuance of that contract, when Kimball paid him the sum of $11,666.66 and gave him his two notes for like sums for the residue of the purchase price. Since that time Kimball has partly discharged these notes by payments. Robbins has paid nothing. The only pretence that can be made of any use of his funds was in the payment of the $11,666.66. That had been raised upon a mortgage by Robbins and Kimball to one Shirk of lands belonging severally to them, and the argument is, that it was the joint fund of the two parties and that Robbins acquired an equitable interest in the land to the extent of his interest in the fund.
Kimball’s version of the transaction is that, about the time he purchased the option of the right to acquire the title, he made an oral agreement with Robbins to the effect that the latter should have the privilege of sharing in his trade when, or upon the condition that, he paid one-half of the price asked for the option and one-half the purchase price of the land; that it was in pursuance of that agreement the Shirk mortgage was executed; that the money thus borrowed was for his own use and not for the use of Robbins or of himself and Robbins, and that Robbins in effect joined in the mortgage note and put his lands in the mortgage as in the nature of a security for him to carry out his purchase in accordance with their contract, with the expectation on Robbins’ part of fulfilling his agreement to pay one-half of the expense previously incurred and thereby being let into the equal enjoyment of the transaction. Robbins denies all this and claims that the mortgage transaction was an ordinary joint borrowing for their mutual benefit and that the fund raised was their joint fund.
We must take it then that he accepted the release. But the fact that he accepted the release and thereby resumed the position he occupied before the negotiation is strong corroborative evidence of Kimball’s version of the contract as a conditional sale, and of Robbins’ attitude toward the Shirk mortgage. This subsequent conduct sheds a light back upon the contract, and enables us to see what were probably its original terms. The parties themselves, not expecting a controversy about the contract, in all probability had not a very definite understanding of its terms, or of their legal status under it. What they did, therefore, in the execution of it, is the best guide attainable for its interpretation. Watkins v. Greer, 52 Ark., 65; Gauss Sons v. Orr, 46 id., 129.
Robbins has failed to disclose a clear and satisfactory state of case as to the payment of his money in the purchase of the land, and the security which he furnished has ibeen restored to and accepted by him. He has thus voluntarily assumed the position which Kimball says he was to take upon failure to comply with the terms of his conditional purchase. We must infer, therefore, that Kimball’s recol- . lection of the contract represents it in its true light.
For the reasons already assigned it cannot be enforced.
Affirm.