Marquette Timber Co. v. Charles T. Abeles & Co.

• Decision Date: 21 January 1907
• Citation: 99 S.W. 685
• Parties: MARQUETTE TIMBER CO. v. CHARLES T. ABELES & CO.
• Court: Arkansas Supreme Court

99 S.W. 685

MARQUETTE TIMBER CO. v. CHARLES T. ABELES & CO.

Supreme Court of Arkansas.

January 21, 1907.

On Rehearing, February 11, 1907.

Appeal from Pulaski Chancery Court; Jesse C. Hart, Chancellor.

Suit by the Charles T. Abeles Company against the Marquette Timber Company. Decree for plaintiff. Defendant appeals. Reversed and remanded, with directions.

C. P. Harnwell, for appellant. Morris M. Cohn, for appellee.

McCULLOCH, J.

On April 6, 1903, Frank F. Savage purchased at a sale under decree of the chancery court an irregular shaped tract of land containing 18 acres in Pulaski county, near the city of Little Rock; the purchase price being $13,500, which was paid cash. About the time the purchase was made Savage and Charles T. Abeles, acting for appellee company, entered into negotiations for purchase of a portion of said tract by said company, and on April 15, 1903, Savage conveyed to said company the north part of the tract, describing it by metes and bounds, for the sum of $5,250 cash paid. Soon afterwards he sold and conveyed the remainder of the tract to appellant, Marquette Timber Company, a corporation in which he was a stockholder. The part conveyed to appellee was not quite half of the tract purchased by Savage at the judicial sale. If the description in appellee's deed had placed the south line of the tract conveyed 15 feet further south, the deed would have embraced one-half of the whole tract purchased by Savage — the north half. Appellee instituted this suit in equity for reformation of the deed, alleging that Savage sold and agreed to convey to appellee one-half of the land he had purchased, but that, on account of mistake in measurement, the deed failed to properly describe the tract intended to be conveyed. The suit was originally brought against Savage and the Marquette Timber Company and a mortgagee of the latter. Savage died after the suit was brought and before any testimony was taken. The defendant answered, denying that any mistake was made in describing the land intended to be conveyed, and alleging that appellant, Marquette Timber Company, had purchased the remainder of the tract and paid for same without any knowledge or information concerning any claim of appellee thereto.

The controversy is over the strip 15 feet wide running through the center of the original tract. Appellee says it was intended to be embraced in its deed, and that the deed should be reformed so as to include it. The evidence concerning the transactions between the parties is furnished principally by Charles T. Abeles, the president of appellee company, and S. M. Savage, one of the officers of appellant company. The latter was a brother of Frank F. Savage, and claims to have been present when the transactions between his brother and Abeles occurred. These witnesses agree upon the point that Abeles wanted half of the tract; but they differ as to the agreement. Abeles says that Frank F. Savage agreed to sell to him for his company the north half of the tract and to convey it to him as soon as they could measure it and ascertain the correct description. Savage denies this. He says that it had been previously understood that the Marquette Timber Company should have the whole tract for a mill plant, and that his brother, Frank, would not agree for Abeles to have the north half of it until they could have it measured and the boundary line ascertained, so as to determine whether the sale of that much of it would interfere with the plans of the timber company. They agreed upon a surveyor to run the lines dividing the north half from the south half, and to furnish a description of the north half. The surveyor did the work, but made a mistake in fixing the dividing line between the two halves — placing the line 15 feet too far north. He marked off the line, but told both parties at the time (Savage and Abeles) that he was doubtful whether or not it was correct. Notwithstanding this admonition, the conveyance from Savage to appellee company was made according to that description, and Abeles accepted it and paid the price. The witnesses again disagree radically as to what then transpired between them. Abeles says that Savage agreed, when he executed the deed, to correct any mistake in the description that might be subsequently ascertained. S. M. Savage says that nothing of the kind occurred; that the deed correctly described all the land intended to be conveyed; that no more was agreed to be conveyed than the part described in the deed; and that the...