Du Fresne v. Paul
| Decision Date | 17 May 1920 |
| Docket Number | (No. 401.) |
| Citation | 221 S.W. 485 |
| Parties | DU FRESNE v. PAUL. |
| Court | Arkansas Supreme Court |
Action by George D. Paul against J. A. Du Fresne in which defendant brought cross-bill against plaintiff and John M. Moody. From decree rendered, defendant appeals. Affirmed.
Botts & O'Daniel, of De Witt, for appellant.
John W. Moncrief, of De Witt, for appellee.
John M. Moody lived in Philadelphia, Pa. On the 16th day of January, 1917, a contract was entered into by Moody with J. A. Du Fresne, whereby the former leased to the latter a tract of land consisting of 240 acres known as the "Valentine place," in Arkansas county, Ark. The lease was for a consideration of $1 and certain covenants whereby the lessee undertook to improve and put the land in cultivation as a rice plantation.
The improvements specified included substantial fences of hog and barbed wire, a well costing not less than $1,800, an engine and boiler costing not less than $2,000, proper housing and sheds for the well and machinery, and belting and fixtures necessary for their operation.
The lessor had the right to cancel the lease if the lessee failed within six months to perform his covenants with regard to the improvements. The lessee was to keep insurance on the rice plant thus installed, to keep same free from all incumbrances, and to pay all taxes, water rents, and assessments.
Among the specific covenants of the lease is the following:
There was also a provision that, if the lessee breached any of his covenants, the lessor had the right to take possession of the premises. There was a covenant on the part of the lessor that, if the lessee performed the covenants on his part, he should hold the premises for a period of five years.
John M. Moody also owned another tract of land in Arkansas county known as the "Massey place," consisting of 270 acres, adjoining the Valentine place, which by letter he promised to lease in connection with the Valentine place; but the Massey place was not included in the written lease.
Du Fresne entered into possession through subtenants.
On November 30, 1917, John M. Moody and George P. Paul executed what purported to be a contract by which Moody agreed to sell, and Paul to buy, the Valentine place for the express consideration of $14,400. The contract provided that the deed should be executed and delivered upon the receipt of the purchase money on December 29, 1917.
John M. Moody and his wife, Henrietta, executed what purported to be a warranty deed to George P. Paul, conveying to him the Valentine place for the express consideration of $14,400. This deed purported to be executed and acknowledged by John M. Moody on December 21, 1917, and by his wife on January 17, 1918.
This action was instituted by the appellee against the appellant on January 5, 1918.
The appellee alleged that he had bought the lands from John M. Moody; that appellant was a tenant of Moody in 1917; that his tenancy had terminated in 1917, but that he was attempting and threatening to enter upon the appellee's premises, that unless restrained the appellant and his subtenants would enter and trespass upon the appellee's land and cut and use timber therefrom to appellee's irreparable injury; that he had offered to pay appellant for the improvements which he had put upon the land; that appellant had permitted numerous leases, liens, and incumbrances to be placed upon the land and had forfeited his rights under the lease contract with Moody.
A temporary restraining order was issued against appellant by the county judge of Arkansas county, as prayed in the petition.
The appellant answered and denied that the appellee had purchased the lands from John M. Moody and denied that appellee was the owner thereof. He alleged that he was the tenant of Moody in 1917 and was still his tenant. He set up the lease contract with Moody, but denied that he had breached the same. On the contrary, he averred that he had fully complied with its terms and that same was still in full force and effect. He alleged that John M. Moody conceived the idea of executing and recording a deed conveying the lands in controversy to the appellee Paul; that he believed that Moody and Paul entered into a conspiracy against him for the purpose of canceling his lease contract and for the purpose of ousting appellant from the possession of the premises. He alleged that he believed that Paul never purchased the land, but permitted Moody to execute the deed to him for the purpose of annulling his lease contract; that such action on the part of Paul and Moody was a fraud upon the rights of appellant. Appellant alleged that he and his agents had a right to occupy the premises, and, notwithstanding the fact that appellant was in actual possession of the premises under the lease contract, that a temporary restraining order had been issued against him restraining him from entering upon the premises and from exercising any control or custody thereof; that after such restraining order was issued possession was taken by Moody or some one in his employ or control. He alleged that he believed the complaint was caused to be filed by Moody and not by Paul. Appellant alleged that he had been greatly damaged by the conduct of Paul and Moody as above set forth; that Moody had breached the lease contract; that the cost of the improvements placed on the premises, less the sum of $760 per year, which he was to pay Moody as rent, was justly due him.
Appellant prayed that his answer be taken as a cross-bill against Moody and Paul and that the alleged deed from Moody to Paul be canceled; that he have damages for the breach of contract and for the improvements placed on the premises and for his costs and all other relief.
Paul answering the cross-complaint denied its allegations as to the conspiracy between him and Moody. He renewed the allegations of his complaint, stated that if any indebtedness was due the appellant for improvements less the rental that the same was due from Moody and not from the appellee. He continued the tender for value of these improvements, and prayed the court to determine the amount due the appellant, if any, and that the appellee have judgment for this sum against Moody. He prayed that the appellant's cross-bill be dismissed.
The cause was heard upon the pleadings, exhibits, documents, and depositions.
The chancery court found that there was no equity in the appellant's cross-complaint, and dismissed the same and entered a...
To continue reading
Request your trial