Dunnivan v. Hughes

• Decision Date: 01 June 1908
• Citation: 111 S.W. 271,86 Ark. 443
• Parties: DUNNIVAN v. HUGHES
• Court: Arkansas Supreme Court

111 S.W. 271

86 Ark. 443

DUNNIVAN v. HUGHES

Supreme Court of Arkansas

June 1, 1908

Appeal from Craighead Chancery Court; Edward D. Robertson, Judge reversed.

Decree reversed and cause remanded.

Hawthorne & Hawthorne, for appellant.

The facts do not justify a decree of reformation in this case. 37 Mo. 364; 55 Mo. 500; 37 Ind. 138; 66 Ind. 488; 67 Ind. 164; 68 Am. Dec. 596; 85 Ark. 62.

F. G Taylor, for appellee.

The court was authorized to decree a reformation under the facts in this case. 28 Ark. 372.

OPINION

BATTLE, J.

On the 7th day of July, 1906, M. A. Dunnivan instituted this action against W. J. Hughes in the Craighead Circuit Court, and alleged that he entered into a contract with the defendant on the 11th day of January, 1906, whereby he agreed to purchase the following described real estate in the town of Jonesboro to-wit: 79 feet off of the west end of lot 6 in block 2 of Flint's Addition to the city of Jonesboro, being 79 feet by 194 55-100 feet, for the sum of $ 300, of which plaintiff paid the defendant $ 100 in cash, and executed to him his promissory note for $ 200, payable six months thereafter; that the defendant at the time of the purchase executed to plaintiff a bond for title whereby he agreed to convey to plaintiff the aforedescribed property "by a sufficient warranty title," upon payment of the purchase money. That the defendant was not at the time of the execution of the bond, and is not now, and has not been at any time, the owner of said property. The plaintiff is entitled to recover the $ 300 and $ 200 damages, the same being the difference in the value of the lot as sold to plaintiff and its market value, "the plaintiff's title to the land sold having wholly and totally failed." And he asked for a judgment for damages.

The defendant answered and admitted that he entered into the contract with plaintiff for the purchase of real estate, and described it, and admitted that it was described in the bond as alleged in the complaint, but averred that it was incorrectly described. That he (defendant) purchased the property at a sheriff's sale under an order of court in an attachment proceeding in the case of M. I. Hughes against J. W. Scott; that on the fifth day of January, 1905, the sheriff levied the writ of attachment in such proceedings upon the lot, and described it as the north half of lot 6 in block 2 of Flint's Addition to the town of Jonesboro, when in fact he actually levied on the lot described in answer, and incorrectly described it in the levy, in the advertisement thereof for sale, and in the certificate of purchase executed to the purchasers. Defendant admits that he sold the lot to plaintiff for $ 300, the sum of $ 100 of which was paid in cash, and tendered a deed to plaintiff for the lot sold when he paid the remainder of the purchase money. Defendant asked that the cause be transferred to the Craighead Chancery Court; that the description of the lot in the bond for title and in the proceedings in attachment be corrected to correspond to the facts, and for judgment against the defendant for the unpaid purchase money.

The cause was transferred to the Craighead Chancery Court; and the plaintiff replied to the answer.

"The facts most favorable to the defendant were about as follows M. I. Hughes instituted an action in the Craighead Circuit Court against J. W. Scott, who appears from the proceedings to have been a non-resident of the State. An attachment was issued and delivered to the sheriff on the 3d day of January, 1905, and levied on the north half of lot six (6) in block two (2) of Flint's Addition to the city of Jonesboro. The notice was posted on the south half of lot six (6) in said block two (2). A judgment was rendered on constructive service against Scott at the March term, 1907, of the court, and the north half of lot six (6) in block two (2) of Flint's Addition to the town of Jonesboro was ordered sold for cash.

"The sheriff advertised the lot to sell as described in the judgment, and posted a notice of sale on the south half of lot six. The sheriff, as shown by the certificate of purchase, sold the north half of lot six (6) in block two (2) of Flint's Addition to Jonesboro to W. J. Hughes on the 17th...