Bradbury v. Dumond

• Decision Date: 23 July 1906
• Citation: 96 S.W. 390
• Parties: BRADBURY et al. v. DUMOND.
• Court: Arkansas Supreme Court

96 S.W. 390

BRADBURY et al. v. DUMOND.

Supreme Court of Arkansas.

July 23, 1906.

Appeal from Arkansas Chancery Court; John M. Elliott, Chancellor.

Action by Lou Bradbury and another against S. L. Dumond. From a judgment in favor of plaintiffs, granting insufficient relief, they appeal. Reversed and remanded, with directions to enter judgments in accordance with the opinion.

H. A. Parker and W. N. Carpenter, for appellants. John F. Park, for appellee.

HILL, C. J.

Appellants sold appellee two tracts of adjacent land, one a 40 and the other an 80, gave him bond for title, and he executed notes for purchase price. This was a suit on the notes and for enforcement of vendor's lien. Appellee answered, setting up a misrepresentation and failure of title as to the 80 and praying rescission as to it. The chancellor gave judgment against him for balance of purchase money due on the 40, and rescinded the contract as to the 80, and the vendors bring the case here.

The extent of the fraudulent or false representation was that the appellants' father had a tax title and owned the land. The bond for title stipulated that they were to convey the 40-acre tract "by a good and sufficient deed, * * * conveying a good and clear title to the same free from incumbrances"; but as to the 80-acre tract it was "to be conveyed by quitclaim deed," without any of the assurances of title given as to the 40-acre tract. The father of appellants acquired a clerk's deed to the land under the act of 1879 for the redemption of delinquent lands, which was duly executed on 20th of May, 1882. Under the terms of the act, if the owner of the delinquent land failed to redeem within a year, then during the next year any one who would pay the tax, penalty, and costs required to redeem should receive from the clerk "a proper deed of conveyance." Bradbury received such deed, aptly describing the land redeemed, and purporting, for the consideration received, to "grant, bargain, and sell it" unto him and his heirs and assigns, with all appurtenances thereto belonging. Under it Bradbury went into possession in the winter of 1886, and commenced clearing and cultivating, and he and his heirs continued in unbroken possession until December, 1894, when his heirs, Bradbury having died, sold the land to appellee. Appellee was in possession as tenant during the year 1894. During 1893 the land lay out and was not cultivated, the fences became broken and dilapidated; but appellee rented it, notwithstanding it was in sorry condition, went onto it, and cultivated it in 1894. Each tract was fenced, there being a line fence between the tracts, houses on both, and considerable part of each in cultivation every year except 1893. The continuity of the possession was not broken by a failure to have tenants for a year. The property was not abandoned. It only fell into a sorry state of repair, which was necessarily incident to its tenantless condition. The cleared fields, the houses, the fences, even if broken down at places, kept the flag of possession flying. It had not gone so far into decay but that appellee moved on it...