Cunningham v. Toye

• Decision Date: 13 February 1911
• Citation: 134 S.W. 962
• Parties: CUNNINGHAM et al. v. TOYE.
• Court: Arkansas Supreme Court

Page 962

134 S.W. 962

CUNNINGHAM et al. v. TOYE.

Supreme Court of Arkansas.

February 13, 1911.

Appeal from Pulaski Chancery Court; Jno. E. Martineau, Chancellor.

Suit by Mrs. Mary Toye against J. C. Cunningham and another. From a decree for plaintiff, defendant named appeals. Affirmed.

Appellee bought of L. A. Dunn lot 4, block 1, Ferndale addition to Little Rock, under a contract of sale which provided that appellee should pay for the lot the sum of $550, of which $50 was to be paid in cash and the balance in 50 notes of $10 each, payable monthly, with 8 per cent. interest. Upon payment of the purchase money Dunn agreed to convey the lot "by a good and sufficient deed." The several notes were in form as follows: "$10.00. Little Rock, Ark. January 29, 1908. On or before sixty days after date, I promise to pay to the order of Luther Dunn, at his office in Little Rock, Ark., the sum of ten dollars, with interest at the rate of eight per cent. per annum from date until paid, all of said interest payable (at) maturity, being one of the deferred payments for the following described property, to wit: Lot 4, block 1, Ferndale addition. This note is a lien on the property above mentioned. No. 1. Due 2-29-1908. [Signed] Mrs. Mary T. Toye." Immediately after the sale of the lot, about February 1, 1908, Dunn sold the entire series of Toye notes to appellant. The consideration was an automobile and a graphophone. Dunn had purchased the lot from Ratterree & Son for the sum of $400, paying the sum of $50 in cash, and executing his notes in sums of $10 each payable monthly for the balance. At the time he contracted to sell the lot to appellee, he owed 22 or 23 of the monthly notes. He had paid on the lot the sum of $170. It was understood between appellee and Dunn at the time of the sale of the lot by him to her that he would pay his notes for the lot every month, and turn them over to her before she paid her notes to him. Ratterree, the owner of the lot, sold the notes Dunn had executed to him to Ben Cox. The appellee continued to pay the notes executed by her until she had paid the sum of $190, leaving notes to the amount of $360 unpaid. She ceased to pay in May, 1909, because Dunn was not paying his notes according to contract. She brought this suit, alleging substantially the above facts, and that appellant purchased her notes from Dunn with full knowledge of the fact that Dunn had not paid his notes to Ratterree, and with full knowledge of the incumbrance upon the lot. She made appellant Dunn, Ratterree, and Cox defendants. She alleged full compliance with her contract to date, and offered to pay the balance of $360. She prayed "that a decree be entered in favor of the plaintiff specifically enforcing the agreement made by said L. A. Dunn with plaintiff, and that all title, legal and equitable, to said lot, be divested out of the defendants, each of them, and invested in this plaintiff, and for all other and such further relief as may seem proper to this court." Appellant answered alleging that he purchased the notes for a valuable consideration without notice and before maturity, and denied that he purchased with knowledge of any incumbrance upon the lot. He prayed that, if specific performance be granted, no decree be entered impairing in any manner his lien on the lot and for all proper relief. Ratterree answered, alleging that the sum of $200.26 was still due on the purchase money, and that he was ready to execute warranty deed when same was paid. Cox answered that he held notes executed by Dunn to Ratterree, that the amount unpaid was $200.26, including interest unpaid.

The court, after hearing the evidence, entered the following decree: "* * * That the plaintiff, Mary Toye, pay into the registry of the court the sum of $360, the balance due on said property; that out of this amount the sum of $200.26 and interest be paid to Ben Cox upon his canceling and surrendering the notes held by him; that the balance of the $360.00 be, after all of the costs of this action are paid, turned over to J. C. Cunningham, and the said J. C. Cunningham is hereby ordered to cancel and deliver to Mary Toye all of the notes against her...