Heard v. Knights of Honor

• Decision Date: 21 May 1892
• Citation: 19 S.W. 671,56 Ark. 263
• Parties: HEARD v. KNIGHTS OF HONOR
• Court: Arkansas Supreme Court

19 S.W. 671

56 Ark. 263

HEARD v. KNIGHTS OF HONOR

Supreme Court of Arkansas

May 21, 1892

APPEAL from Conway Circuit Court in chancery, JEREMIAH G. WALLACE Judge.

This was an action by the Morning Star Lodge of Knights of Honor against George M. Heard for the purchase money of a tract of land, the deed for which, as alleged in the complaint, had in pursuance of the sale, been delivered to W. J. Stowers as an escrow, subject to the orders of Heard upon payment of the purchase money, which he agreed to pay on January 1, 1891.

Heard in his answer admitted that he had agreed to purchase the land and that a deed had been prepared and delivered to Stowers as stated. But he alleged that, at the time of making the contract, there was a legal and valid mortgage upon said land which was duly recorded and which is now a lien upon the land. That he had offered to pay the amount of the purchase money for the land immediately upon the satisfaction of the mortgage and accept and receive the deed. That appellee neglected and refused to remove said lien and still refuses to do so. That for this reason, and this alone, had he refused to pay the purchase money.

The case was tried on oral testimony before the court sitting as a jury. The court, on its own motion, after hearing the evidence and argument of counsel, transferred the case to the equity docket, and rendered the following decree:

The court, having duly considered the testimony, finds the following facts: "That plaintiff on the 13th day of September, 1890, sold to defendant the following described lands situated in Conway county (describing the lands), for the sum of $ 828, and that on said day the plaintiff executed a deed conveying said land to said defendant with the usual covenant of warranty, which deed was, by agreement of parties, deposited with W. J. Stowers in escrow to be delivered to defendant on the payment of the purchase money which defendant verbally agreed to pay January 1, 1891. That defendant went into possession of said land, cut about forty cords of wood thereon and plowed up about three acres of said land. That, at the time of said purchase and sale, there was an unsatisfied mortgage of record which was prima facie a lien on said land, which defendant had no actual knowledge of and which he did not contemplate paying, the sum above mentioned being the full value of said land. That the amount that now appears to be due upon said mortgage debt is $ 305 that, on or before the 1st of February, 1891, defendant offered to pay the amount of said purchase money to said plaintiff, less the amount of said mortgage debt; and that upon plaintiff's refusal to accept the same, defendant declined to carry out his contract to purchase the same. Upon these facts it is by the court ordered and decreed that the plaintiff do have and recover of and from the defendant the said sum of $ 828, and a lien is hereby declared on said land for said sum, but the execution of said judgment, to the extent of the amount of said mortgage debt, to-wit., $ 335, is hereby postponed until plaintiff shall procure the legal satisfaction of the same, whereupon said amount shall be due and payable and its payment may be enforced, as hereinafter provided, for the residue of this decree. It is further ordered and decreed that if the sum of $ 495, with six per cent interest from January 1, 1891, be not paid within twenty days that said land may be sold." Costs were adjudged against the plaintiff. Defendant appealed, and plaintiff has taken a cross appeal.

Affirmed.

Moose & Reid for appellant.

1. Appellant should not be compelled to accept an encumbered title, pay the purchase price and be compelled to trust to a suit to recover on the warranty in the deed. The contract was executory, and the Lodge could not have specific performance without performing its part of the contract, and convey a good title. 14 S.W. 864; Suth. on Dam. 192, et seq.; 2 Eng. 153; 21 Ark. 235; 23 id. 582; ib. 639; 38 id. 128; 44 id. 145, 192; 19 Vesey, 220; Waterman, Sp. Perf. secs. 502 et seq; 13 Ves. 81; 38 Ark. 31; 104 Mass. 407; 21 Barb. 381; 45 Ark. 17.

2. The contract for sale was verbal and within the statute of frauds. Pom. Sp. Perf. sec. 30; Fry on Sp. Perf. secs. 384, 388; 1 Ark. 391; Waterman, Sp. Perf. sec. 260; 6 Barb. 98; Wood, St. Frauds, sec. 482.

Ratcliffe & Fletcher for appellee.

1. The contract was executed. On payment of the purchase money the deed would take effect without delivery. 3 Wash. Real Pr. (4th ed.) pp. 299, 303-4; 14 Ohio 308; 63 Am. Dec. 241; 17 Ga. 267; 11 Ark. 75; 22 id. 284; ib. 435. In case of defect of title the remedy is at law on the covenants in the deed. 21 Ark. 588-9; 40 Ark. 422; 47 Ark. 293.

2. The mortgage was of record and defendant cannot now be heard to plead want of knowledge or to ask relief by reason of a supposed defect of title. 47 Ark. 339; ib. 164; 46 id. 347; 27 id. 250; 26 id. 30.

3. Appellant is in no condition to offer to rescind. He does not offer to surrender possession or pay for the wood cut or for rent. 15 Ark. 286; 20 id. 438; 17 id. 603; 25 id. 204; 30 id. 545-6; 2 Suth. Dam. 202-3; 41 Barb. 420; 26 Wis. 585. But if he had offered to rescind, this is not a case for rescission. It is only a case of partial failure of consideration, easily compensated in damages. 26 Ark. 314; 13 id. 522; 2 Suth. Dam. 203.

4. Appellant gained all he contended for and has no reason to complain.

5. The question of the statute of frauds...