121 Ark. 482 | Ark. | 1915
Ratteree & Sons are real estate agents in Little Rock, and as such had a Contract with the owners of certain lots in that city to negotiate a sale, and on the ■15th of January, 1914, an agreement was reached with appellant for the sale of the lots which form the subject-matter of this litigation. It was agreed that the Ratterrees should furnish an abstract showing a marketable title to the lots, and .an abstract was furnished. The parties differ as to their agreement in regard to the examination of this title, it being contended by appellant that the understanding was that the title should be examined by .a lawyer.agreed upon, and Ms opinion should be decisive of that question. Appellees deny that there was any such understanding, and say further that no such issue was raised by 'the pleadings. It was first agreed that the title should be examined by T. M. Mehaffy, but as he was .absent from the city it' was later agreed that the title should be examined by D. E. Bradshaw, these gentlemen being practicing attorneys in Little Rock.
Appellant knew that the Ratterrees were not the owners of the property, but he accepted their statement that the title was perfect and placed the lots in charge of the real estate firm of Faulkner & Pastemeck to sell upon commission, and this last named firm negotiated the sale of a‘ number of these lots and earned certain commissions which were paid them by appellant. Bradshaw examined the title and in a letter addressed to appellant, but mailed to the Ratterrees, reported that the title was not merchantable. In this letter the objections to the title were set cut, and it is insisted on appellees’ part that these objections were not well taken. Upon receipt of this letter the Mr. Ratterree who had the matter in charge told appellant that he had the letter but did not state its contents further than to say that certain objections to the title had been made which he was engaged in straightening out. This report was satisfactorily to appellant at the time, and Faulkner & Pastemeck continued to make sales of the lots. Finally 'appellant demanded that he be given a title wMch Bradshaw would approve, or that his money be returned, and appellant testified that Bradshaw told Mm the title might not be perfected for an indefinite time and might possibly never be perfected. This .statement is not denied. Appellant thereupon elected to treat the sale at an end and brought suit to recover the cash payment made by him and the commissions which he had paid Faulkner & Pastemeck.
The Citizens Investment & Security Company had loaned the owners of these lots certain sums of money and the legal title to the lots was outstanding in its name, and a suit was brought by Bradshaw in the name of tMs company to quiet the title to the lots, this suit being intended to meet the objections raised in the opinion to the title.
Appellant testified that he knew nothing about this suit and did not authorize its institution, and there appears to ¡be no question but that Bradshaw was acting for Batterree in that proceeding.
When appellant brought suit to recover the purchase money advanced and the commissions which he had paid, the owners of the lots made themselves parties to the proceedings .and moved for a transfer of the cause to equity where it might be consolidated with the suit to'quiet the title, where, upon all apparent defects being cured, a decree for the specific performance of the contract of sale might be enforced. The cause was transferred to equity, where it proceeded regularly to a decree, which was rendered some time after the decree in the confirmation case had been rendered. So far as the confirmation decree is concerned it is said, on the one hand, that the title was good without it, while, on the other hand, it is insisted that the decree did not perfect it, inasmuch as it was a proceeding against certain unknown heirs, who were made parties by the publication of a warning order, and that the time allowed by the statute for persons so proceeded against to appear has not yet expired. It is •also urged that the title was marketable through the adverse possession arising out of the continuous payment of taxes by the owners for a number of years.
“It is equally well settled in the law that the purchaser under an executory contract is entitled, before he is required to pay the price, to receive, not only a good title, but one which is marketable. He is entitled to receive ‘not only a title that he can .hold against all adverse comers, but one that he can hold without reasonable apprehension of its being assailed, and one that he can readily transfer, if he desires, in the market ’. ”
The subject was gone into thoroughly in the recent case of Leroy v. Harwood, 119 Ark. 418, 178 S. W. 427, and it would serve no useful purpose to further discuss that subject.
Learned counsel for appellees claim in their brief to have demonstrated that the title in question was, not only a good title, but was a marketable one, and the court below took that view of the case and decreed a specific performance of the contract and dismissed appellant’s 'suit for the purchase money and damages as being without equity, .and this appeal questions the correctness of that decision.
Treating this title, for appellant’s purposes, as having failed, the measure of Ms recovery will be the $250 purchase money paid by him and the interest thereon from the date of payment. Carvill v. Jacks, 43 Ark. 450; Alexander v. Bridgford, 59 Ark. 210; Collier v. Cowger, 52 Ark. 322; Dillahunty v. Ry., 59 Ark. 636; Barnett v. Hughey, 54 Ark. 195.
The decree will, therefore,, be reversed with directions to set aside the decree for specific performance, and with further directions to render judgment against the Ratterrees for the purchase money paid and the interest thereon.