Allen v. Brame

• Decision Date: 13 February 1911
• Citation: 135 S.W. 850,98 Ark. 287
• Parties: ALLEN v. BRAME
• Court: Arkansas Supreme Court

135 S.W. 850

98 Ark. 287

ALLEN v. BRAME

Supreme Court of Arkansas

February 13, 1911

Appeal from Lafayette Chancery Court; J. M. Barker, Chancellor affirmed.

Decree affirmed.

Yeaman & Yeaman and James D. Head, for appellant.

Searcy & Parks and Henry Moore, Jr., for appellee.

MCCULLOCH C. J. HART and KIRBY, JJ., dissent.

OPINION

MCCULLOCH, C. J.

Dr. B F. Slusher and his wife, then residing in Lafayette County, Arkansas, owned the large tract of unimproved lands in that county which is involved in this controversy, and on August 26, 1907, they entered into a written contract with appellee, Frank Brame, for the sale of said land to him for the sum of $ 8,500, payable $ 250 cash, and four installments of $ 250 each, payable in one, two, three and four months, respectively, and $ 1,584 payable January 1, 1908, on which last named date the vendors were to execute a deed reserving lien for the remainder of the purchase price--$ 1,888 due January 1, 1909, $ 1,889 due January 1, 1910, and $ 1,889 due January 1, 1911.

The contract misdescribed the lands, and the vendors attempted to correct the error by a new contract, dated January 8, 1908; but the last contract omitted the description of 240 acres of the land, and Brame declined to accept it until correction should be made embracing all of the tracts which the vendors had agreed to sell to him. About that time the vendors offered to execute a deed containing a correct description of all the lands, but Brame insisted on a correction of the contract. This part of the controversy is unimportant, since the vendors did in fact correct the contract by inserting a description of the omitted tract of 240 acres, and the corrected contract was delivered to Brame, and on March 12, 1908, was signed and accepted by him, his acknowledgment to the instrument being taken on that day by Slusher's agent as notary public.

Brame immediately filed the contract for record in the office of the recorder of deeds for that county, and the same was duly placed on the records. The Slushers had, on March 7, 1908, instituted an action against Brame in the chancery court of Lafayette County to cancel the contract, and the suit was not dismissed when Brame accepted the corrected contract. Brame demurred to the complaint at the April term, 1908, of the chancery court, and the case stood on his demurrer until the October term of the court, when it was voluntarily dismissed by the Slushers, who appeared for that purpose by their attorneys.

When the contract was corrected, Brame tendered to the Slushers' agent the installments due on the purchase price, but the tender was refused, and subsequently another tender was made and refused, but said agent offered to purchase Brame's equity for a consideration. There is a sharp conflict in the testimony on this point, but the chancellor's finding is not, we think, against the preponderance of the testimony, and under well-settled rules must be taken as correct.

Some time during the month of March, 1908, the Slushers gave to J. O. Smith, who was cashier of the Merchants' & Farmers' Bank of Lewisville, Arkansas, an option in writing to purchase these lands for $ 10,000 on condition that the Brame contract could be cancelled and abrogated. That contract has not been brought into the record, nor are its terms disclosed in the record. It does not appear when it expired.

On May 20, 1908, Smith, pretending to act for the Slushers, executed to appellant, C. V. Allen, a contract in writing for the sale of this land at the price of $ 12,000, and Allen paid $ 1,000 on the purchase price in the nature of earnest money. On June 19, 1908, Smith notified Dr. Slusher by wire (the Slushers having in the meantime moved to Colorado) that he had an offer of eight thousand dollars for the land, and that one thousand dollars was to be paid over as a forfeit. Dr. Slusher wired acceptance of the offer. This transaction had reference to the sale to Allen, which Slusher then understood was to be for a consideration of $ 8,000, and the Slushers accepted the contract on the condition that the Brame contract could be cancelled.

The Slushers executed a deed to Allen dated July 14, 1908, and sent it by mail to the Merchants' & Farmers' Bank of Lewisville, with written instruction to "hold until record is clear and Mr. Allen buys draft for $ 8,000 less the Goss mortgage, and sends to us here." J. W. Warren, who was acting with Smith in negotiating the sale to Allen, took the deed to Henderson, Kentucky, and there delivered the deed to Allen about August 1, 1908, the deed having been either taken there by Warren or sent there by the Merchants' & Planters' Bank attached to a draft on Allen, and the latter subsequently paid the balance of the agreed price of $ 12,000 on drafts of Smith. The delivery of the deed was made without the knowledge of the Slushers, who, being urged to do so in order to close the deal, executed and caused to be delivered to Allen the following writing, dated August 18, 1908:

"Whereas, the undersigned, B. F. Slusher and his wife, Rena B. Slusher, have conveyed to C. V. Allen of Webster County, Kentucky, certain lands in Lafayette County, Arkansas, lying in sections 9, 10, 11, 15 and 16, the deed to which is dated July 14, 1908; and,

"Whereas, there may be a cloud upon the title to said land growing out of the fact that one Frank Brame holds a contract for the purchase thereof, suit to cancel which contract is pending in the chancery court of said Lafayette County.

"Now, the said Slusher and his wife, Rena B. Slusher, agree and request that the said Allen leave the purchase price of said lands in the hands and possession of the Merchants' & Farmers' Bank, of Lewisville, Ark., until such time as all questions growing out of the contract with said Brame may be settled by judgment of court or otherwise, and all cloud upon said land, growing out of said contract, removed, which purchase price will be held by said bank for and on account of, and at the risk of, the undersigned, B. F. Slusher and Rena B. Slusher, and when so paid to the bank by said Allen will be in full settlement of the purchase price of said land, but the purchase price is to be returned by said bank to said Allen unless the cloud upon the land growing out of the contract with Brame should be removed by judgment of court or otherwise. When said cloud is so removed, then said purchase price is to be paid over by the bank to said Slusher and wife."

The deed to Allen had been recorded in the office of the recorder at Lewisville on August 3, 1908, but, as before stated, this was without the knowledge of the Slushers. Of the purchase price Allen paid $ 3,000 on July 31, and the...