Garrison v. Geren

• Court: Arkansas Supreme Court
• Writing for the Court: SMITH, J.
• Citation: Garrison v. Geren, 251 S.W. 39, 159 Ark. 9 (Ark. 1923)
• Decision Date: 14 May 1923
• Docket Number: 381
• Parties: GARRISON v. GEREN

251 S.W. 39

159 Ark. 9

GARRISON v. GEREN

No. 381

Supreme Court of Arkansas

May 14, 1923

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor affirmed.

Decree affirmed.

John D. Shackleford, for appellant.

The burden was opinion appellee to prove the title was merchantable, and no attorney having been agreed on to pass on the title, he should have introduced the abstract as a part of his testimony. 142 Ark. 268. The agreement for terms and stipulations in a lease must be understood by both parties alike. 19 Ark. 23; 49 Ark. 306. A lease is a conveyance of a particular estate in lands. 228 S.W. 393; 2 Blackstone, Com. 367. Burden of proof of terms of lease on appellee, and testimony must be clear and satisfactory as to the precise terms. 228 S.W. 393; S.W. Ark. 854; 39 Ark. 424; 96 Ark. 98; 44 Ark. 334; 12 Ark. 421; 23 Ark. 704; 33 Ark 294. The effect of this suit is to collect a forfeiture, and courts of equity abhor forfeitures. 30 Ark. 556.

OPINION

SMITH, J.

The parties to this litigation entered into the following written contract:

"Escrow Agreement.

"This agreement made and entered into this 14th day of January 1921, by and between W. J. Goodwin, attorney in fact, for H M. Geren and Julia Geren, his wife, party of the first part, and W. P. Garrison, of Little Rock, Arkansas, party of the second part, witnesseth:

"The party of the first part has executed an oil and gas lease to certain lands situated in section 22, township 17 south, range 15 west, in Union County, and the party of the second part attaches to said lease his draft in the amount of twelve thousand two hundred fifty ($ 12,250) dollars. In addition to the amount of $ 12.250, the party of the second part deposits herewith two thousand ($ 2,000) dollars cash, to be paid to the party of the first part when title to said land is passed by the attorney for the party of the second part. A copy of the opinion of the attorney selected by the party of the second part, exhibited to the bank by the party of the first part, shall be authority for the payment of the said two thousand ($ 2,000) dollars.

"The party of the first part shall furnish and deliver abstract of title to land described in said oil and gas lease within two days from date hereof, showing good and merchantable title to said lease to be vested in party of the first part. Party of the second part shall have said abstract examined and said title to said lease passed upon by a competent attorney within five days from date of this instrument. If title is good and merchantable, then the bank hereinafter named shall pay said sum of two thousand ($ 2,000) dollars to party of the first part, and shall hold the said draft for twelve thousand two hundred fifty ($ 12,250) dollars, and the said oil and gas lease, for a period of fifteen days from date before final payment is made. The opinion of said attorney shall be in writing, and if he shall hold said title is defective, then all defects shall be clearly indicated and set forth by him in writing. If said title is defective, then party of the first part shall have five days from the date said attorney's opinion is delivered to him within which to cure said defects, and if he should fail to cure said defects, then said lease shall be delivered, at the expiration of the time limit of fifteen (15) days, to the party of the first part, and said sum of money shall be delivered and paid over by said bank to the party of the second part. It is distinctly understood that the party of the second part shall have a total of fifteen (15) days from date within which to make balance of payment of twelve thousand two hundred fifty ($ 12,250) dollars. It is agreed by and between the parties hereto that this instrument shall be deposited in escrow with the Citizens' National Bank of El Dorado, Arkansas.

"In witness whereof we have hereunto set our hands on this 14th day of January, 1921." An abstract of the title to the land described was examined by Marsh & Marlin, a firm of attorneys practicing at El Dorado, and a written opinion was prepared by them on January 21, 1921, in which they advised that Geren had a good and indefeasible title, subject only to an outstanding lease--an objection which was immediately met by the reassignment of the lease.

After the approval of the title by Marsh & Marlin, the surrender of the $ 2,000 cash and the draft was demanded. This demand was refused, whereupon Geren brought suit for the specific performance of the lease, and made the bank a party.

Garrison answered, and filed a cross- complaint. He alleged that Marsh & Marlin were not the attorneys of his selection, and that he was therefore not bound by their opinion. He also alleged that the lease did not contain the recitals and agreements upon which he and Geren had agreed, and that the execution of the original escrow agreement had been procured by the false representation that no part of the land described was within the corporate limits of the city of El Dorado, whereas a material part of the land was situated within the corporate limits of that city, and therefore subject to certain municipal regulations in regard to drilling for oil and in piping oil from a producing well which did not obtain and were not in force outside of the city. By way of cross-complaint he alleged that he sustained a loss of $ 11,000, because some third parties refused to carry out a trade with him for the reason that the title shown by the abstract was not good and merchantable.

Geren brought this suit to enforce specific performance of the contract, and from a decree in his favor Garrison has appealed.

The principal question in the case is the one of fact whether Marsh & Marlin were the attorneys designated by Garrison to examine and pass upon the title. The court below expressly found the fact to be "that an abstract of title was duly furnished by plaintiff to the attorney selected by the defendant, and on January 21, 1921, the attorney so selected by said defendant approved the title, in a written opinion which was delivered to the defendant."

We concur in this finding of fact, and as the parties, by their agreement,...