McKnight v. Witherington

• Decision Date: 11 April 1910
• Citation: 127 S.W. 727
• Parties: McKNIGHT v. WITHERINGTON.
• Court: Arkansas Supreme Court

127 S.W. 727

McKNIGHT v. WITHERINGTON.

Supreme Court of Arkansas.

April 11, 1910.

Appeal from Chancery Court, Calhoun County; J. M. Barker, Chancellor.

Suit by J. Q. Witherington against W. F. McKnight. From a decree for complainant, defendant appeals. Affirmed.

Appellee sued appellant in the circuit court of Calhoun county, alleging in his complaint: That he purchased of appellant, among other lands, part of the N. E. ¼ of N. W. ¼ and the S. E. ¼ of N. W. ¼, section 23, township 13 S., range 14 W., for all of which he paid $450, and that the land was reasonably worth $4.16 2/3 per acre. That the land purchased in N. E. ¼ of N. W. ¼ contains 28 acres, and this and the 40 acres, the S. W. ¼ of N. E. ¼, made 68 acres. That appellant prior to the date of the sale to appellee had sold without the knowledge of appellee two acres in N. E. ¼ of N. W. ¼ to a school district, and had sold also without his knowledge the entire 40 acres (S. W. ¼ N. E. ¼) to one R. A. Bethae, and that appellant had delivered the possession of the lands to the school district and to Bethae before appellee purchased same of him, and that said parties were in possession thereof at the time appellant sold the same lands to appellee. That appellant executed a warranty deed to appellee conveying the above lands, and that appellee paid him for same at the time of the sale full consideration. That 42 acres of the land sold by appellant to appellee belonged to other parties. That appellant knew at the time he sold the land to appellee that he had previously sold same to other parties, and that he did not own the land above described, and that his warranty to the land had failed, and appellee was damaged thereby in the sum of $175.25, for which he prayed judgment.

The appellant filed the following answer: "(1) He admits that on the 4th day of October, 1906, he sold to the plaintiff part of the N. E. ¼ of the N. W. ¼ of section 23, township 13 S., range 14 W. He denies that he sold him the entire S. E. ¼ of the N. W. ¼ of section 23, township 13 S., range 14, but alleges the truth to be that he sold to the plaintiff that part only of each of said sub-divisions of land lying northeast of the Hampton and Camden road with part of the S. W. ¼ of the N. E. ¼ of said section No. 23, township 13, range 14, which tract or parcel of land embraces about 76 acres. He admits that prior to the time mentioned in plaintiff's complaint he had sold all that part of the aforementioned land lying southwest of the Hampton and Camden road to R. A. Bethae except two acres which he had previously sold to school district No. 9, and that he had put each of said parties in possession of same. (2) He says further that the said R. A. Bethae and school district No. 9 were in possession of said land on the 4th day of October, 1906, and that this plaintiff knew this at the time. He further states that the plaintiff only bought, and the defendant only sold him, that part of said land lying northeast of the Hampton and Camden road, and that neither plaintiff nor defendant knew how much land was embraced in said tract, and that the defendant at the time of said sale told the plaintiff he did not know how much land was in the tract, and he says that the land embraced in plaintiff's complaint was included in the deed made to plaintiff by the defendant by mistake, and that he did not sell to plaintiff, nor did he intend to sell it to him. (3) Defendant denies that he practiced a fraud upon the plaintiff. He alleged that he received the sum of $4.16 2/3 per acre for the land, and that was its value per acre. He denied that appellee was damaged in any sum. He prayed that appellee's complaint be dismissed for costs and "all other and proper relief."

The cause was transferred to the chancery court and was heard upon substantially the following testimony:

W. F. McKnight: "In the spring of 1906, J. E. Brumley came to me and wanted to buy my land, situated on the northeast side of the road leading from Hampton to Camden. I priced it to him at $450. Instead of buying the land at that time, he rented it for that year, with the understanding that, if he concluded to purchase it later, he was to have the privilege of doing so. On the 3d of October of that year, he called me up over the phone, and after some conversation agreed to buy the place at $450. He asked how many acres there were in the tract, and I told him it had not been measured, but embraced all that part situated on the northeast side of the road. On the next morning, the plaintiff came to me and said he had come at the instance of J. E. Brumley to pay out the land, and that it was agreed between him and Brumley that, as he was to advance the purchase money, the deed should be made to him. He paid me $450, and I made the deed to him. I only sold him the land situated on the northeast side of the road and intended to include only that in the deed; but, being in a hurry at the time, I copied the description from an abstract formerly made for me for my land and overlooked the fact that this description included the land on both sides of the road. Nothing was ever said by me to Mr. Witherington before I executed to him the deed of October 4, 1906, as to where the land he purchased of me by that deed was located with respect to the Camden and Hampton road. The location of the road with respect to that road was not mentioned between us. I did not state to Mr. Witherington anything as to the number of acres of land that I was deeding to him, nor did he ask me about it."

J. E. Brumley testified with reference to the same transaction as follows: "In the spring of 1906, the defendant, W. F. McKnight, and myself had some conversation about the purchase of all that portion of land in controversy lying northeast of the Camden and Hampton road, and it was agreed that I take possession of the land and either pay rent or subsequently purchase it at the agreed price of $450. On the day before the deed was executed by McKnight to Witherington, I called McKnight over the phone and told him I had concluded to buy the place. He told me he had been offered $500; but, on being reminded of his promise, he let me have it for $450. I told him to meet J. Q. Witherington in Hampton on the next day to make him the deed and get his money. Witherington had called on me and informed me that he would like to have the place if I did not want it, and that he would take the trade off my hands, and I consented to his doing so. In this conversation, I told Witherington that the big road was the line between Bethae's and McKnight's land, and that Witherington would not get any land southwest of the road in this trade. In the deal between myself and McKnight, I was to pay McKnight for the land $450. He had a week or so prior to this represented to me that this tract lying northeast of the Camden and...