Busch v. Gecks

• Decision Date: 03 December 1945
• Docket Number: No. 4-7760.,4-7760.
• Citation: 190 S.W.2d 625
• Parties: BUSCH v. GECKS.
• Court: Arkansas Supreme Court

Page 625

190 S.W.2d 625

BUSCH v. GECKS.

No. 4-7760.

Supreme Court of Arkansas.

December 3, 1945.

Appeal from Chancery Court, Garland County; Sam W. Garratt, Chancellor.

Action by Bertha Busch against Anton J. Gecks to foreclose a vendor's lien. From a decree dismissing the complaint for want of equity, plaintiff appeals.

Affirmed.

Jay M. Rowland, of Hot Springs, for appellant.

Curtis L. Ridgway, of Hot Springs, for appellee.

McFADDIN, Justice.

The sole question is whether the appellant is entitled to interest.

Appellant, as plaintiff, filed suit against appellee in the Garland Chancery Court on March 16, 1945, alleging: (1) That in January, 1942, appellant, by written contract, sold certain real estate to the appellee for $25,000; (2) "that there is now due the sum of $3,250.00 accumulated past-due interest which, after repeated demands, the defendant refuses and neglects to pay"; and (3) "that plaintiff has a right to foreclose her vendor's lien on the said property * * * in the amount of $3,250.00 interest and the amount of $25,000.00 principal, a total amount of $28,250." The prayer of the complaint was for a decree of foreclosure and an order of sale. The appellee (defendant below) denied any agreement to pay interest, and claimed that no interest was due under the contract. After hearing the evidence the Chancery Court sustained the defense of the defendant, and entered a decree dismissing the complaint for want of equity. The plaintiff prosecutes this appeal.

The evidence is practically uncontradicted. Appellant was the owner of certain real estate in Garland County, Arkansas. On January 14, 1942, she and appellee entered into a written contract, prepared without aid of an attorney. The instrument was entitled "A Rental-Purchase Agreement." We copy its salient provisions:

"Bertha J. Busch agrees to the following

"1. To turn over to Anton J. Gecks two hundred and thirty (230) acres of land in Garland County, State of Arkansas, as recorded on pages of Land Records in Court House, in Hot Springs, Arkansas, in which land is located the McClendon Springs and Housing Properties on the following basis:

                Rental rate, First year     $25.00 per month
                  "     "  , Second year     30.00  "    "
                  "     "  , Third year      35.00  "    "
                  "     "  , Fourth year     40.00  "    "
                  "     "  , Fifth year      50.00  "    "
                

"2. At the end of the fifth year, all rents paid by Anton J. Gecks, during this five year period of time, will be applied as a credit on purchase price of this property which is now agreed upon as twenty-five thousand dollars ($25,000.00);

"3. At the end of the fifth year, when purchase price of property goes into effect, Bertha J. Busch agrees to give to Anton J. Gecks, a clear title to above property upon payment of said twenty-five thousand dollars ($25,000.00), minus rental credit as agreed upon in paragraph two (2). In the event that Anton J. Gecks is unable to pay the full amount agreed upon, Bertha J. Busch hereby agrees to grant to Anton J. Gecks, an additional period of five (5) years to complete payment for said property. Unpaid balance to be paid one fifth (1-5) yearly.

* * * * *

"Anton J. Gecks agrees to the following

"1. To do everything within his knowledge, power to the best of his ability to create a market for the products of McClendon Mineral Springs and the land thereof.

"2. To make all monthly rental payments promptly when due at agreed rental rates.

"3. To make repairs to all properties as needed as quickly as conditions will permit.

* * * * *

"9. Failure to pay monthly rental on time automatically cancels this contract and Anton J. Gecks must remove all personal effects from property within ten (10) days time.

* * * * *

It is admitted that Gecks made and is still making the monthly payments promptly and just as provided in the contract; that he has never paid any interest; that the contract has no provisions for interest; and that the parties made no agreement about interest. The plaintiff testified on direct examination:

"Q. And did he ever pay any interest on the contract? A. No.

"Q. Was there any agreement between you and him with reference to interest? A. No, he didn't say anything about it."

And, again, the plaintiff testified:

"Q. Was there any interest ever mentioned on any of it? A. No.

"Q. Did he ever say anything about interest? A. No."

In concluding his brief in this court, the attorney for the appellant says:

"We, therefore, respectfully submit that the judgment of the Garland Chancery Court should be reversed and that the...