Letchworth v. Vaughan

• Decision Date: 16 December 1905
• Citation: 90 S.W. 1001,77 Ark. 305
• Parties: LETCHWORTH v. VAUGHAN
• Court: Arkansas Supreme Court

90 S.W. 1001

77 Ark. 305

LETCHWORTH v. VAUGHAN

Supreme Court of Arkansas

December 16, 1905

Appeal from Prairie Chancery Court; JOHN M. ELLIOTT, Chancellor affirmed.

STATEMENT BY THE COURT

The plaintiff, Emmett Vaughan, sold, and by deed containing covenants of warranty of title conveyed, to the defendant, J W. Letchworth, a body of land containing 1,009.09 acres. The purchase price of the land was $ 1,000, of which $ 500 were paid upon delivery of the conveyance. The grantee retained the balance of the purchase price, $ 500, and the parties entered into a written agreement reciting the terms of the sale and conveyance, and that the title to the lands was irregular, as shown by the abstracts, and that the plaintiff agreed with the defendant "on or before four years from this date to perfect a perfect or satisfactory title to the above-described lands." It was further agreed, in this writing, that defendant should retain $ 500 of the purchase price until the title to the lands should be perfected, and that, in the event of the failure of the plaintiff to perfect the title within the time mentioned, the sum retained should be forfeited to the defendant.

Within a few months after the date of the conveyance and contract the plaintiff caused an ex parte suit, in the name of the defendant Letchworth, to be instituted under the act of March 28, 1899, for the confirmation of title to the lands. Kirby's Digest, §§ 649-660. The defendant, at the request of the plaintiff, signed and verified the petition for confirmation, and the same was duly prosecuted to final decree. The cost and attorney's fees were paid by the plaintiff.

After the confirmation decree was rendered, the plaintiff, Vaughan asserted that he had complied with his contract, and demanded payment of the sum retained, and, upon refusal of defendant to pay, brought this suit in equity to enforce his lien upon the lands as vendor.

The defendant answered, denying that the title to the lands had been perfected in accordance with the contract, or that he had agreed to accept the confirmation as sufficient compliance with the contract. He also alleged that the confirmation decree was irregular and void.

The cause was heard upon the pleadings, the depositions of the plaintiff and defendant, and the transcript of the proceedings in the confirmation suit, and the court rendered a decree in favor of the plaintiff for recovery of the sum retained and declared same to be a lien on the lands.

The defendant appealed.

Decree affirmed.

T. C. Trimble, Joe T. Robinson, T. C. Trimble, Jr., for appellant.

1. The decree was not final for three years from rendition. Kirby's Digest, § 657. When performance is a condition precedent, it must be averred and proved. 42 F 421; 35 Ind. 1; 89 Ind. 565; 25 N.Y. 194. The vendor has no standing in equity until he has done equity by showing a full performance upon his part, according to the spirit of his obligation. 22 Am. & Eng. Enc. Law, 947. The vendee will not be compelled to accept as satisfactory a title that is defective by reason of irregular or imperfect judicial proceedings. Ib. 952; 3 L. R. A. 739. Where the vendor is unable to make a good title, he cannot obtain a decree for specific performance. 15 U.S. 290; 31 U.S. 389. A good title means not merely a title valid in fact, but a marketable title which can again be sold to a reasonable purchaser, or mortgaged to a person of reasonable prudence. 5 L. R. A. 654. If open to judicial doubt, it is not a marketable title. 86 N.Y. 575; 46 Hun, 638; 67 Penn. 396.

Suit for purchase money is in the nature of a bill for specific performance, and, if the title is doubtful, plaintiff cannot recover. 3 Cent. Rep. 150.

2. Under the contract appellant is entitled to decree declaring forfeited the $ 500 purchase money retained by him.

J. H. Harrod, for appellee.

OPINION

MCCULLOCH, J., (after stating the facts.)

Under a fair construction of the contract, considering the language employed, the subject-matter thereof, the circumstances surrounding the transaction and the contemporaneous execution of a deed with convenants of warranty of title to the lands about which the parties were contracting, it must be held that appellee undertook thereby to give appellant, within the time specified, a title not necessarily perfect, but such title as he (appellant) should be willing to accept as satisfactory. The law does not favor forfeitures, and will, when a reasonable interpretation of the contract admits of it, adopt such construction as will prevent a forfeiture. Bain v. Parker, ante, p. 168; Little Rock Granite Co. v. Shall, 59 Ark. 405, 27 S.W. 562.

Of course, appellee would be liable to appellant, upon the covenant of warranty in the deed, for any damages sustained by the latter on account of failure of the title to any of the lands conveyed; but a different question arises on the construction of the contract under consideration, and we hold that if appellee has furnished appellant a title which the...