Mays v. Blair

• Decision Date: 12 July 1915
• Docket Number: 110
• Citation: Mays v. Blair, 179 S.W. 331, 120 Ark. 69 (Ark. 1915)
• Parties: MAYS v. BLAIR
• Court: Arkansas Supreme Court

179 S.W. 331

120 Ark. 69

MAYS v. BLAIR

No. 110

Supreme Court of Arkansas

July 12, 1915

Appeal from Searcy Chancery Court; T. H. Humphreys, Chancellor reversed.

Cause remanded.

Bratton & Bratton, for appellant.

1. A vendee is entitled to the return of his money where the vendor is unable to produce the title contracted for. 20 Ark 437; 47 Ark. 21; 86 Ark. 446. In this case the vendor failed to comply with his contract to convey the land by January 10 1913, by warranty deed with complete abstract certified up to date. It was not the intention of the parties to rely simply upon the warranty deed of the grantor. The "complete abstract, certified up to date," specifically called for by the contract, means such a record title, reflected by the records and abstract, as shows a perfect title, and no other. 1 Cyc. 213; 31 P. 504.

Deeds containing such descriptions as "Pt. S.W. 1/4, S.W. 1/4 section 23, etc., are void for uncertainty. 60 Ark. 487; 68 Ark. 155; 73 Ark. 38; 59 Ark. 462; 35 Ark. 477; 30 Ark. 657; 48 Ark. 425.

Where a contract expressly or impliedly calls for a record title, a title by adverse possession is not sufficient. 39 Cyc. 1460; 134 Ia. 381; 102 Mo.App. 384; 60 Id. 535; 139 Cal. 384; 160 N.Y. 156; 97 Minn. 385; 8 Ind.App. 291. A vendee is not bound to accept title by adverse possession. 65 How. Prac. 75; 36 N.Y.S. 668; 23 Ky. 754; 87 Cal. 49; 139 Mass. 436; 96 N.E. 997; 85 Cal. 535.

2. A vendee is not compelled to accept a doubtful title. 112 Pa.St. 485; 10 Cent. Rep. 155; 108 N.Y. 618; 26 U.S. 455; 9 U.S. 262; 46 Hun 839; 41 Id. 311; 120 N.Y. 79; 10 Ill. 174; 5 La. 845; 64 Md. 543; 117 Mass. 184; 24 Ark. 197; 8 N.J.Eq. 520; 3 A. 821; 32 S.W. 844; 63 Ark. 548, and cases cited; 44 Ark. 145; 66 Ark. 433.

3. Appellant had the right to demand that appellee would be in position to comply with his contract on January 10, 1913. The extension granted was without consideration and voluntary on the part of appellant, merely to give appellee all reasonable opportunity to comply with his contract. Notwithstanding appellant's forbearance, appellee four months later was not able to present a good title, and refused to do more, but insisted that his title was all that was called for. Appellant then had no option but to accept the title presented by Blair at that time, or to demand the return of his money. He was entitled to the return of his money and the court erred in not giving judgment therefor. 21 Ark. 238; 5 Denio 161; 6 Barb. 147; 52 N.C. 567; 22 Ark. 427; 23 Ark. 639; 7 Ark. 207; 119 S.W. 134; 54 Am. Dec. 494; 31 Id. 274; Fed. Cas. No. 16950; 87 Cal. 203; 92 Id. 131; 3 App. D. C. 1; 11 Ill.App. 450.

S. W. Woods and A. Y. Barr, for appellees.

1. The contract was written by Mays. Its wording is of his own choosing. If it is ambiguous, or capable of two constructions, it must be construed most strongly against him. 112 Ark. 1; 105 Ark. 519; 90 Ark. 256.

The words of the contract will be given their usual and ordinary meaning, unless the proof shows that a technical meaning was intended, and that use or meaning shown to be general among the class of persons concerned in the transaction to such an extent that it may be inferred to have been used in the technical sense. 65 F. 382; 105 Ark. 518.

2. We find nothing in the authorities holding that a contract for an abstract or a "complete abstract" means an "abstract showing a complete record title. For definitions of an abstract of title, see 119 S.W. 709; Anderson's Law Dictionary; 82 Cal. 533; 71 Ia. 278. If it had been intended that Blair should furnish a "complete abstract certified up to date showing a complete record title," the contract should have been so drawn.

3. Blair has a good fee simply and merchantable title to the lots. The abstract shows a full, complete and perfect record title to the Joseph T. Blair lands from the United States down to and including appellee, being described in all the deeds by Government corners, lines, creeks, directions, distances and other boundaries, so that it could be accurately surveyed and platted. 30 Ark. 513; 40 Ark. 237; 3 Washburn, Real Prop. (3 ed.), 347; Devlin on Deeds (2 ed.), § 1012.

Under the rule stated in the authority last cited, we contend that the abstract shows a complete record and merchantable title in appellees to the few lots carved out of the Samuel Leslie lands. To make appellee's title complete and certain, the land in controversy was set apart to him by metes and bounds by a decree of the chancery court in 1900, and he has had it inclosed, and held it adversely ever since.

Whatever interest Nancy Leslie owned in the land, if any, was sold by proceedings in the probate court, pursuant to section 4032, Kirby's Digest, and the sale was approved and confirmed in 1902. Any irregularities or defects in the sale were cured by confirmation. 44 Ark. 411; 52 Ark. 341.

As to Floy Bratton, Belle Treadwell and Ona Waterson, the probate sale would have cut off any claim by them. The statute bar on judicial sales rules against married women the same as others. 115 Ark. 359.

In general the vendor has until the last payment to obtain title, and the vendee can not rescind for the lack of title, if the vendor is solvent. Appellee is shown to be solvent. 60 Ark. 39. Before a vendee is justified in rescinding a contract on the ground of defect of title, or that the title is not good, the defects must be shown to be of a substantial and existing nature, and not merely speculative or apprehended ones. 22 Ark. 435; 23 Ark. 147; 31 Ark. 151.

And in an action for rescission of a contract, the vendor has a right to rely on whatever title he may have by limitation or otherwise. 80 Ark. 2.

4. By the payment of the thousand dollars and agreement to pay the balance in installments, Mays exercised his right of purchase and became bound thereby for the payment of the balance. 93 Ala. 153, 6 Ruling Case Law, 603.

OPINION

MCCULLOCH, C. J.

This is an action instituted by appellant, Ed Mays, to recover a portion of the contract price which he had paid to defendant, George T. Blair, on the purchase of 125 lots in the town of Leslie. The agreed purchase price was the sum of $ 10,000, of which $ 2,000 was paid in the beginning, and a thousand dollars paid subsequently. Appellant's claim is that the vendor broke the contract by failing to furnish a marketable title to the lots sold; and appellees, Blair and wife, claim that they furnished not only a perfect legal title, but a marketable title, and that appellant broke the contract by refusing to take the property and pay the balance of the purchase price, and that for that reason he should not be permitted to recover. The court rendered judgment in favor of appellant for the recovery of the thousand dollars paid subsequent to the sale, but denied recovery as to the $ 2,000 paid in cash at the time the agreement was reduced to writing.

The primary question in the case is whether or not the contract was an executed one or whether it was executory. In other words, whether the instrument of writing executed by the vendor to the vendee was a deed conveying the title with covenants of warranty, or whether it was an executory contract to convey. Much depends in this case upon a solution of that initial question. In order to ascertain the exact legal meaning of the instrument, it will be set forth in full:

"Know all men by these presents: That for and in consideration of the sum of two thousand dollars to us cash in hand paid by Ed Mays, and the further sum of eight thousand dollars, to be paid by January 10, 1913, Geo. T. Blair and C. A. Blair, his wife, do hereby grant. bargain, sell and convey unto the said Ed Mays, and his heirs and assigns, the following described real estate lying in the county of Searcy, State of Arkansas, towit: (Here follows description by lot and block numbers of the 125 lots forming the subject-matter of the transaction.) It is expressly understood and agreed that the said Ed Mays, grantee, and his heirs and assigns, shall within the time above named have right and option to pay the balance of the said purchase price, and the grantor herein obligates himself to receive the same and to make notations of the receipt of the same upon the margin of this conveyance, if presented to him for that purpose, and upon the margin of the record thereof in the office of the recorder, and to make a warranty deed with complete abstracts certified up to date. And it is further understood and agreed that should the grantee fail to do so, then all of his rights under this instrument of conveyance shall be forfeited, and the title shall revert at once to the grantor, his heirs or assigns without any other deed of conveyance or instrument of release being executed, and grantor owes grantee nothing, and grantee owes grantor nothing. The said Geo. T. Blair, grantor, hereby covenants with the said Ed Mays, grantee, heirs or assigns, that he will forever warrant and defend the title to the property above granted against the lawful claims of all persons whomsoever. And I, C. A. Blair, wife of the said Geo. T. Blair, for the consideration and purposes aforesaid, hereby join in the execution of this instrument with my said husband, and release and relinquish to the grantee, his heirs or assigns, all of my claim to dower and homestead in and to the above granted premises. Witness our hands and seals this 16th day of August, 1912."

The instrument was executed by Blair and his wife and duly acknowledged and filed for record. It will be observed that the instrument just set forth contains the usual form of granting clause, but it does not contain a formal habendum clause. The clause following the description of the property constitutes, in substance, a stipulation that...