Little Red River Levee District No. 2, White County v. Moore

• Decision Date: 12 February 1940
• Docket Number: 4-5775
• Parties: LITTLE RED RIVER LEVEE DISTRICT NO. 2, WHITE COUNTY v. MOORE
• Court: Arkansas Supreme Court

137 S.W.2d 234

199 Ark. 946

LITTLE RED RIVER LEVEE DISTRICT NO. 2, WHITE COUNTY v. MOORE

4-5775

Supreme Court of Arkansas

February 12, 1940

Appeal from White Chancery Court; Frank H. Dodge, Chancellor reversed.

Decree reversed and cause remanded.

Culbert L. Pearce, for appellant.

J H. Moody and Harry Neelly, for appellee.

OPINION

SMITH, J.

The contracts out of which this litigation arose are sufficiently recited in the opinion on the former appeal. Little Red River Levee District No. 2 v. Moore, 197 Ark 945, 126 S.W.2d 605.

The contracts were construed in the former opinion, and their specific performance was decreed, and the cause was remanded with the following directions: "The decree is reversed and the cause remanded, with directions to allow Moore and Bailey, or either of them, six months from the date of this opinion in which to pay the tax equivalents on so much of the land as was subject to the holdover privilege of the contract. It is so ordered." The contracts were made exhibits to the complaint first filed in this cause, and it was alleged that the plaintiffs were entitled to the relief prayed under the provisions thereof. Separate demurrers were filed by the respective defendants, that of the defendant Bailey being upon the ground "That the said complaint does not state facts sufficient to constitute a cause of action against the defendant." The demurrers were sustained, and the plaintiffs stood on their complaint, which was dismissed.

We reversed that decree, and declared the respective rights and liabilities of the parties under the contracts, and remanded the cause with the directions above quoted.

Upon the remand of the cause Bailey filed an answer, in which he prayed reformation of the contract under which he had purchased the oak timber. He alleged that whereas Moore & Denton had purchased all the timber under a contract which required them to cut and remove it within five years, one-fifth each year, and to surrender the fifth each year upon which the timber had been cut, or to pay the taxes if an extension of time were required, he had purchased the oak timber under a contract which gave him the right, without conditions, to cut and remove the oak timber within five years of the date of the release of lien to him for the oak timber. He filed a cross-complaint against his co-defendants, Moore & Denton, in which he prayed that, in the event he should he required to pay any taxes or costs by reason of this suit, he have and recover of and from said Moore & Denton any sum he should be required to pay, under and by virtue of their warranty deed to him.

The opinion on the former appeal was treated, upon the remand, as being decisive of the rights and liabilities of Moore & Denton, and as to them it was ordered that they surrender to the plaintiffs three-fifths of the land, as three of the five years allowed for cutting and removing the timber had then expired. But as to Bailey it was decreed that the instrument referred to as "Release of Lien" be reformed so as to give him five full years from the date of said instrument in which to cut and remove the oak timber.

In support of the prayer for this relief testimony was offered to the effect that it was understood between Bailey and the secretary of both improvement districts that he should have five years in which to cut and remove the oak timber, and that it was virtually understood that the contract gave that right, as it was, in fact, intended to do.

The three persons who are commissioners of the drainage district are the directors of the levee district, and both districts have the same officers. Each district claimed the lands on which the timber was sold under forfeitures and sales to the respective districts for the nonpayment of the improvement district taxes due...