Chalkley v. Henley

• Decision Date: 10 December 1928
• Docket Number: 50
• Parties: CHALKLEY v. HENLEY
• Court: Arkansas Supreme Court

12 S.W.2d 18

178 Ark. 635

CHALKLEY v. HENLEY

No. 50

Supreme Court of Arkansas

December 10, 1928

Appeal from Monroe Chancery Court; A. L. Hutchins, Chancellor reversed.

Decree reversed and remanded.

Golden Blount and Brundidge & Neelly, for appellant.

Bogle & Sharp, for appellee.

OPINION

MEHAFFY, J.

On the 11th day of December, 1927, J. G. Howard sold to the appellee 160 acres of land in Monroe County for the sum of $ 6,400 payable in annual installments, $ 1,000 to be paid on or before December 1, 1918, $ 1,000 one year thereafter, another $ 1,000 one year after that, $ 1,700 in 1921, and $ 1,700 in 1922. The land purchased is described as follows: the northeast quarter of section 7, township 3 north, range 2 west, in Monroe County, Arkansas.

The parties entered into an agreement in writing, showing the sale of the land, the execution of the notes, which were to bear interest at the rate of 7 per cent. per annum from date interest payable annually, and from maturity at the rate of 10 per cent. per annum. The contract provided: "It is agreed that, when the buyer has paid $ 1,000 of the principal on the contract and the interest due up to that date, he has the option to have this contract annulled, and the seller agrees to make a warranty deed to said property, retaining a vendor's lien for the balance of the unpaid purchase price."

It was also agreed that time was of the essence of the contract, and after the buyer failed to pay, the seller had the option either to declare the entire balance of the purchase price due or rescind the contract. And, in case of rescission, all moneys paid by the buyer were to be taken and retained as rent.

The contract also provided for a lien on one-half of all the crops grown on the land each year during the life of the agreement.

The appellee paid the first $ 1,000 note and the interest due up to that time, but did not make any further payments. This contract was made in December, 1917, and, so far as the record shows, no effort was made to collect until February, 1927, when suit was filed by appellant to foreclose the lien for the purchase money. This was nearly ten years, and, according to the contract, the last payment was due in 1922.

Appellee filed answer and cross-complaint, alleging that appellee was entitled to a deed when he paid the first $ 1,000 and interest, but that the seller failed and refused to execute a deed as provided in the contract. Appellee alleged that because of this failure he was damaged in the sum of $ 5,600, because he had contracted to sell the land for $ 75 per acre, and in his cross-complaint he asked judgment for the $ 5,600. He further alleged that the seller agreed to give an abstract showing a good title to said lands, and failed to comply with this part of the contract, in that no abstract was furnished. He further alleged that he had made valuable improvements on the land; had expended $ 2,609.25, and asked that, if the court should hold that he was not entitled to the profits, he was entitled to recover the $ 1,448 which he had paid on the lands, together with the amount or value of the improvements put on the land.

Appellee asked that he have judgment against the appellant, and that the same be declared a lien on the land, and that the land be sold to pay said judgment.

This cross-complaint was filed on the 25th day of April, 1927. The appellant never filed any answer to the cross-complaint, and no steps were taken to bring the case to trial by either party, and on February 6, 1928, one year after the suit was filed, the court dismissed the cause for want of prosecution. The clerk, soon thereafter, wrote to Mr. Blount at Searcy, Arkansas, attorney for appellant, that the cause was dismissed, and he also inclosed a copy of the cross-complaint. There is nothing appearing in the record to show that the cross-complaint was dismissed, except appellee's attorney asked that the order dismissing the cause be set aside, so that he could go to trial on his counterclaim. This occurred on the 2d day of April, 1928. He asked that the court vacate and set aside the order made at the February term dismissing said cause, and stated as his reasons that he had filed a cross-complaint and had his witnesses present at court to substantiate the merit of same. The court had overlooked the filing of the cross-complaint, and found that he had filed a cross-complaint in February, 1928, and that the cause should not have been dismissed until defendant's cross-complaint was disposed of. The court thereupon vacated and set aside the order dismissing the cause, and gave the defendant an opportunity to prosecute his cause of action upon his cross-complaint, and the defendant announced ready to go to trial on his cross-complaint, and the court thereupon proceeded to trial.

The court found that complaint was filed in February, 1927, cross-complaint in April, 1927, and that since that time the court had held both regular and adjourned terms of court as follows: February, 1927, regular term; April 4, 1927, adjourned term; April 5, 1927, adjourned term; June 6, 1927, regular term; July 27, 1927, adjourned term; October 3, 1927, regular term; December 12, 1927, adjourned term; and February 6, 1928, regular term; and that neither the plaintiff nor any attorney representing him had appeared at either of said terms, and that the cause was dismissed at the February term of court for failure to prosecute. That the plaintiff had failed to plead, answer or demur to the cross-complaint, and that his time for so doing had long since passed.

The court further found that they entered into the contract, and gave judgment against the appellant for $ 1,448, the amount appellee had paid him, and for the sum of $ 2,925 for repairs, and found that said repairs were completed February 1, 1928.

The court further found that defendants had expended $ 600 in clearing in August, 1918, and paid taxes on the land for 1918 and 1919, amounting to $ 352.98, and gave judgment for the above amount, with 6 per cent. interest, less the rental value of said land for 1918 to date, which he found to be $ 3,160, leaving a balance due, according to the finding of the court, of $ 3,849.12.

The court canceled the notes of Hensley, and, after the evidence had been heard and the cause submitted to the court on defendant's cross-complaint, counsel for plaintiff appeared in court and asked the court to set aside the orders it had made and permit him to file an answer and continue the cause to a future date, which motion the court denied, and the plaintiff saved his exceptions.

The motion to set aside the judgment, entered on the 2d day of April, 1928, stated, among other things, that plaintiff had never been advised that defendant was ready to try said cause upon the cross-complaint; never been notified to taken any depositions; and that on the 14th day of February, 1928, his attorneys were advised by the clerk of the court that the cause had been dismissed for want of prosecution, and advised that the next term of court would be the first Monday of April, 1928. That plaintiff's attorney left Searcy for Clarendon on the 2d of April, but had car trouble and did not reach there until about 10 A. M., and then asked to be permitted to put the matter over and to introduce proof to rebut the testimony of the defendant. He further stated that he had a good defense to the cross-complaint; that he had at no time failed or refused to deliver deed; that appellee could not have been damaged by the loss of a sale of...