Arkadelphia Lumber Company v. Thornton

• Decision Date: 01 July 1907
• Citation: 104 S.W. 169,83 Ark. 403
• Parties: ARKADELPHIA LUMBER COMPANY v. THORNTON
• Court: Arkansas Supreme Court

104 S.W. 169

83 Ark. 403

ARKADELPHIA LUMBER COMPANY v. THORNTON

Supreme Court of Arkansas

July 1, 1907

Appeal from Dallas Chancery Court; Emon O. Mahony, Chancellor affirmed.

STATEMENT BY THE COURT.

This suit was brought by the Arkadelphia Lumber Company against John W. Mann in the Dallas Circuit Court to replevy a lot of staves. Mann answered, denying the allegation of the affidavit for replevin, and made his answer a cross bill alleging that W. B. Head, being the owner of the land on which the staves were made prior to the making of the same sold and delivered said land to him for the agreed price of $ 300, and placed him in possession of same, and then and there agreed to make him a deed upon the payment of the purchase money within thirty days. That within the thirty days he paid the purchase money to Head and demanded a deed, which he refused to make. That afterwards, and while he was in possession of the land exercising acts of ownership and control over the same, Head, confederating with the Arkadelphia Lumber Company to cheat and defraud him fraudulently sold to it the pine and oak timber on the land and executed a deed to it, and that this deed is a cloud on his title. That at the time of the execution of this timber deed the plaintiff well knew that Head was not the owner of the land or timber, but knew that defendant was the owner and in actual possession, and exercising acts of ownership over the same. He asked that the cause be transferred to the chancery court, that Head be made a party, and that he be compelled to execute a deed to defendant for said land. W. Burres Head was made a party defendant. The cause was transferred to equity.

The Lumber Company answered the complaint of Mann, and made its answer a cross complaint against Mann and W. Burres Head. It denied that Mann purchased the lands from Head, that Head placed him in possession, or that he was ever rightfully in possession; denied that it confederated with Head to cheat and defraud Mann. It alleged that the pretended contract between Head and Mann was verbal; that it was void under the statute of frauds. That in April, 1902, Mann represented to it that he owned said land, and sold the pine timber thereon to it for $ 500, and received its two checks for $ 300 and $ 200; that the $ 200 check was paid by it. That, after receiving the timber deed and paying the check for $ 200, it discovered that Mann had no title to said land or the timber thereon, so it purchased the pine and oak timber from W. Burres Head, acting for himself and as attorney in fact for the other heirs of his father, W. B. Head, deceased, and paid therefor $ 350. It prayed for judgment against Mann for $ 200 paid to him for timber he did not own, and that the $ 300 unpaid check be cancelled, and, in the alternative, for judgment against Head for $ 350 for failure of consideration, if it be held that the title to the lands had previously been legally contracted to Mann.

The heirs of W. B. Head, besides W. Burres Head, are Mrs. Virgie Smith, Mrs. Rivers, Hearon, Olive, and Bertha Head. The widow was Mrs. Della Head.

The defendant W. Burres Head answered and made his answer a cross bill against Mann, and alleged that he was not the sole owner of the lands in controversy, but that same was owned by him jointly with the other heirs of the W. B. Head estate. As to the attempt of Mann to purchase said land, he admitted that there had been negotiations looking to that end, but no deed was executed, possession given, or money paid under the alleged purchase. That said negotiation for said purchase between Mann and this defendant was through Pledger, his agent. That Pledger had no power of attorney to sell, and whatever agreement was entered into with him was subject to approval by this defendant. That, if said negotiations amounted to an agreement to sell, the same was void because induced by the false, fraudulent and wilful misrepresentations of Mann, as to the timber upon said lands, which was a material element in said agreement, and caused this defendant to sell said lands for less than their real value. He alleged that the contract was by parol, and pleaded the statute of frauds. That Mann entered wrongfully into the possession of said lands and without authority collected rents from Head's tenant. He prayed for an accounting by Mann as to the rents collected by him.

This was the state of the pleadings when the cause first came to this court. Arkadelphia Lumber Co. v. Mann, 78 Ark. 414. On that appeal the cause was reversed, because the defendant did not make all the owners of the land against whom a specific performance of the contract of sale was sought parties to his cross complaint. On the second trial this was done by making the other heirs of W. B. Head, deceased, parties. The cross complaint was amended by alleging that W. Burres Head and the other heirs named supra were the owners of the land from which the staves were cut. It was alleged that W. Burres Head, by virtue of a power of attorney executed to him by the other parties named above, sold and delivered the land to John W. Mann. The additional parties filed their separate answer, in which they admitted their ownership of the lands in controversy, adopted the answer of their co-defendant, W. Burres Head, denied all of the material allegations of the cross complaint, and especially denied that Pledger had any authority from them to sell, contract to sell or to deliver possession of said lands to said Mann, or to any one else, or to accept payment therefor.

The case was tried the second time in the chancery court upon the same testimony and admissions as in the first trial. Since the first trial however, Mann has died, and the cause was revived in the name of his administrator, the present appellee.

John W. Mann testified as follows: "In the spring of 1902 I received the following letter from W. B. Head: 'Mr. J. W. Mann, Dear Sir: I sent word to Pledger to sell you the land some time ago. I suppose he has seen you by this time.' Pledger came to me on the 24th of March, 1902, and told me that he had received a letter from Head, telling him to see if he could sell me his place. I offered him $ 300. He said he would not accept it without examining the land. We agreed to, and did, meet on the land in controversy the next morning, and went over and examined it. Mr. Shankles, who also wanted to buy the place, and Mr. Brown, who wanted to rent it, went with us. Brown was going to a log rolling, and wanted to know something definite whether he could rent the place for next year or not, and it was then and there agreed between Pledger, Shankles, Brown and myself that whoever the place fell to should let Brown have it. Shankles was to meet us at Wozencraft's if he concluded to raise my bid, but did not come, and Pledger and myself closed the trade for the land. The agreed price was $ 300 to be paid in 30 days, and left with Sorrells. I deposited with Sorrells the check of the Arkadelphia Lumber Company for $ 300, this mode of payment being agreed on between Pledger and myself. Pledger agreed at the time to have a deed executed by Head in 30 days and delivered to me, and at the time turned over the place to me, and I rented it to Brown for ten dollars. I made no false or fraudulent representations to Pledger or Head regarding the timber on the land. On the other hand, Mr. Pledger went over the timbered portion of said land prior to the sale and made his own estimates of the same. The trade was absolute, Pledger claiming to have full authority in the matter. On the day I deposited the check Pledger told me that he had received a letter from Head ratifying the trade, and saying it was all right. There are 280 acres of land in the tract. Pledger only went through one end of the bottom land. There was some oak in the bottom, but it was principally red oak. I have never received any deed from Head. When I sold the pine timber to the defendants, I told them that I had bought the land and had a right to sell. At the time I bought this land I had not been on it in 15 years except to pass along a road that runs through it. All the choice oak timber had been cut when I bought. Red oak had no market value. When the trade was made, and I was talking about renting out the place and selling the timber, Pledger said: 'Go ahead and do it. My word is my bond. I don't care if you make a thousand dollars out of it.' The word possession was not used, but he did say 'I don't care what you do with the place.'"

It was shown that Mann deposited with Sorrells a draft for $ 300 of the Arkadelphia Lumber Company in payment for the land. He gave Sorrells the numbers of the land and instructed him that when the deed came, if it was correct, to turn over the draft to Pledger. Sorrells still had the draft. A witness testified that he was present when Pledger sold the land to Mann, and it was agreed that Mann might pay the purchase in a check of the Arkadelphia Lumber Company, and that same was to be delivered to Sorrells.

Brown testified as follows:

"I was present when Mann, Pledger and Shankles were talking about the place. It was agreed between the three that whoever bought the place would rent it to me, and if it was not sold that Pledger would rent it to me. In accordance with this agreement, I rented the place from Mann and took possession of it. Neither Mr. Pledger or Mr. Head have ever objected to my renting the land from Mann, nor has either of them objected to my occupancy of same, nor have they claimed any rent. When I left them, there had been no sale. I afterwards learned of it from Pledger."

W. H Henry testified: "I am well acquainted with the land in controversy, and have been for 25 years. I own land on two sides of it. In November,...