Bodine v. Taylor

• Court: Arkansas Supreme Court
• Writing for the Court: SMITH, J.
• Citation: Bodine v. Taylor, 218 S.W. 374, 142 Ark. 268 (Ark. 1920)
• Decision Date: 16 February 1920
• Docket Number: 187
• Parties: BODINE v. TAYLOR

218 S.W. 374

142 Ark. 268

BODINE v. TAYLOR

No. 187

Supreme Court of Arkansas

February 16, 1920

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor affirmed.

Complaint dismissed.

James E. Hogue and Geo. M. Heard, for appellant.

Under the original contract appellant contracted for 25 acres of land for $ 1,000. Defendant could not give him a good title to all the land, and the contract failed and was abandoned by agreement, and a new agreement made, which was void because not in writing. Kirby's Digest, § 3654, subd. 4. No forfeiture is claimed in the answer and no proof of a forfeiture, and the court erred in its findings of fact and its declaration of law, as the new contract was within the statute of frauds.

Philip McNemer, for appellee.

1. There was no detect in the title as to the one acre, as found by the chancellor.

2. Under the contract for 10 acres more or less and the general description, there was no failure of title as to the one acre. 19 Ark. 108-9; 101 Id. 99. It is appellant's fault, and the court so found, that he failed and refused to take the land as he agreed. He failed to carry out his original contract without reason, as the title was good and he refused to buy at the agreed reduced price, and the decree is correct.

OPINION

SMITH, J.

This is a suit to recover fifty dollars paid by the appellant to S. R. Taylor under a contract for the purchase of a certain piece of land and to subject the land to the payment of the same. The suit was originally filed against S. R. Taylor as defendant, who has since died, and the cause has been revived in the name of appellees. The complaint alleged that on the 7th day of August, 1916, the plaintiff and defendant entered into a contract by the terms of which the defendant agreed to sell the plaintiff twenty-five acres of land in Pulaski County, Arkansas. That the plaintiff agreed to pay therefor a thousand dollars, and that the defendant was to furnish him with an abstract showing a good title to the land. That plaintiff paid fifty dollars to the defendant as an advance payment of earnest money, and agreed to pay the balance when the defendant should furnish the plaintiff a deed and abstract showing a good title to the land. That later the defendant furnished an abstract, which, upon examination showed that he had no title to one acre of the land, and that there were defects in the title, which showed that the defendant did not have good title to the land.

That the plaintiff refused to accept the deed and refused to pay the balance of the purchase money except upon the condition that the defendant should deduct the value of the shortage or perfect his title. That the defendant refused to deduct the value of the shortage in quantity and refused to carry out and perform his part of said contract. That the defendant refused to return the fifty dollars paid, and that the plaintiff was entitled to a lien on the land to secure its return.

The prayer was for a decree against the defendant for $ 50, and that the plaintiff be decreed to have a lien on the land to secure the payment of same, and for an order of sale in case of failure to pay.

Upon filing a motion by the defendant to require the complaint to be made more specific, the plaintiff filed an amended complaint, making the contract of sale an exhibit thereto and alleged that it was agreed that in case the defendant could not make a satisfactory deed that the defendant should return the advance money. That the plaintiff caused the abstract, which the defendant had furnished him, to be examined by an attorney, who advised the plaintiff that the defendant did not have a good title to one acre of the land and that it would require a suit in chancery to perfect the defendant's title. That by reason of the imperfection of the defendant's title to one acre of the land the defendant was unable to make a satisfactory deed. That the contract of sale was...