Ezell v. Humphrey & Simonson

• Decision Date: 22 March 1909
• Citation: 117 S.W. 758
• Parties: EZELL v. HUMPHREY & SIMONSON.
• Court: Arkansas Supreme Court

117 S.W. 758

EZELL v. HUMPHREY & SIMONSON.

Supreme Court of Arkansas.

March 22, 1909.

Appeal from Mississippi Chancery Court; Edward D. Robertson, Chancellor.

Action by Humphrey & Simonson against S. B. Ezell. From a judgment for plaintiffs, defendant appeals. Affirmed.

S. S. Semmes and W. J. Lamb, for appellant. J. T. Coston, for appellee.

McCULLOCH, C. J.

The defendant, Ezell, who is appellant here, owned two sections of land in Mississippi county (sections 31 and 32, township 14 N., range 10 E.), and on December 14, 1903, sold and, by deed containing full covenants of warranty of title and against incumbrances, conveyed them to the plaintiffs, Humphrey & Simonson. The conveyance also embraced a lot in the town of Luxora, Ark., and contained a reservation of title to the timber on the land. The land at the time of the conveyance was incumbered with special assessments, amounting to about $1,100, for the drainage of the land, and constituted a lien thereon. Subsequent to the conveyance, the lien of these assessments was enforced against the land, and the plaintiffs were compelled to pay the same in order to protect the land from foreclosure sale. The plaintiffs then instituted this action at law to recover from defendant the amount paid out by them to remove the incumbrance. Defendant filed his answer and cross-complaint, alleging in substance that it had been understood and agreed that the plaintiffs should pay these assessments, but that the stipulation to that effect was by mistake omitted from the deed. The prayer of his cross-complaint is that the deed should be reformed, so as to correctly express the true agreement of the parties thereto. The cause was removed to the chancery court, and on hearing thereof the chancellor dismissed the cross-complaint for want of equity, and rendered a decree in favor of the plaintiffs for the recovery of the amount paid out by them in removing the incumbrance. Defendant appealed to this court.

The negotiations between the parties leading up to the conveyance of the land were entirely by correspondence, except the verbal negotiations preceding it, to which no importance is attached, and which tend in no degree to settle the point at issue. The verbal negotiation was had in September, 1903, and the correspondence began on October 6, 1903, by a letter from the defendant, written from his home in Spartansburg, S. C., to plaintiff Simonson, with whom all the negotiations were had. This letter, after referring to other matters pending between the parties, contained the following statement, which is relied on as fixing the substance of the agreement: "I intended, also, to talk with you further about the sale of sections 31 and 32. If you wish to submit an offer on these two sections to your associate at $10 per acre, you may do so, subject, of course, to the timber contract which is on them with Moore & McFerrin and the ditch tax when due." The letter also contained a further statement with reference to the reservation of timber: "In case of a sale to you, I would have to reserve the timber on the strip of new land which I ought to get on the west side to offset that cut off on the east side."

Simonson replied to this by letter dated October 12, 1903, which, after referring to the other matters, contained the following: "Will say I appreciate your proposition of $10 per acre for your sections 31 and 32 in 14 — 10; but that is a big lot of money to put into lands that are in the condition that lots of this land is in. I think my proposition of $11,200 for these two sections was very liberal on my part, and exceedingly profitable to you in case of acceptance. There are several points upon which I will need information before being in shape to proceed rightly; that is, the amount per acre or in total of the drainage tax upon this land, and the time of the expiration of the timber contract with Moore & McFerrin, or more definitely yet, perhaps, the time you could give us a warranty deed with full possession. In case this latter feature in particular was satisfactory, I will say I would recommend to my people the purchase of these two sections at $12,000, including the timber mentioned. In case of a sale, we would pay all cash, or, if terms as to interest were satisfactory, would pay cash as you desired and balance later as you wished, though not less than two or three years, as we would prefer to pay cash, rather than make terms for a shorter time. Will say, by the time we pay the drainage tax and make any improvement toward constructing laterals to get the water off, we would have more than $14,000 in the land right away."...