Quertermous v. Hatfield

• Decision Date: 06 December 1890
• Citation: 14 S.W. 1096,54 Ark. 16
• Parties: QUERTERMOUS v. HATFIELD
• Court: Arkansas Supreme Court

14 S.W. 1096

54 Ark. 16

QUERTERMOUS v. HATFIELD

Supreme Court of Arkansas

December 6, 1890

APPEAL from Arkansas Circuit Court, JOHN A. WILLIAMS, Judge.

Plaintiff F. M. Quertermous, instituted suit against Sarah Frazier in the court of a justice of the peace upon a note for $ 100 signed by her, which recited that it was given as part payment for rent of the land therein described. He asked the enforcement of his landlord's lien upon the crop raised on the land. Upon the death of defendant the cause was revived in the name of her administrator, Marshall Hatfield. Judgments adverse to plaintiff were rendered in the justice's court and in the circuit court on appeal.

Judgment affirmed.

Carroll & Pemberton and E. S. Johnson for appellant.

1. The verdict is contrary to the law and evidence. The note shows that the relation of landlord and tenant exists, and it is proven by the evidence. And even if there was a conditional agreement to sell, after default Mrs. Frazier was only the tenant of appellant. 48 Ark. 413; 31 id., 222, 228. If this relation existed, the tenant cannot dispute the title. 36 Ark. 568.

2. A verbal agreement to sell land is void. Mansf. Dig., sec 3371. There is no proof of part performance. 1 Ark. 418; 8 id., 278; 21 id., 179.

3. If there was an agreement to sell, it was conditional upon payment of the note, and was not available after default. 48 Ark. 413; 31 id., 228.

4. If the relation of landlord and tenant existed, the ownership of the land was not the subject of inquiry. 37 Ark. 122.

5. But if the title was involved, then the justice had no jurisdiction. 7 Ark. 309.

Gibson & Holt for appellee.

1. The evidence contradicts the idea that the relation of landlord and tenant existed. Appellant's own statements and admissions show that Mrs. Frazier purchased the land from him. The fact that the note recited it was for rent did not prevent appellee from showing what it was for. 51 Ark. 220.

2. There was no agreement to pay rent in case of failure to pay the note, as in 48 Ark. 413.

3. 44 Ark. 446, settles the question as to the statute of frauds. This is not an attempt to enforce specific performance.

4. The title to land is not involved.

OPINION

COCKRILL, C. J.

If the parol agreement between the appellant, who was plaintiff below, and the appellee's intestate was for the sale and purchase of the land, upon the condition that, on default in payment of the first installment of purchase money, the contract of purchase should end ipso facto, and the relation of landlord and tenant should subsist as though no sale had been contemplated, then plaintiff was entitled to judgment for the rent agreed upon and to the enforcement of his landlord's lien upon the crop. Ish v. McRae, 48 Ark. 413; Watson v. Pugh, 51 Ark. 218; Cheney v. Libby, 134 U.S. 68, 33 L.Ed. 818, 10 S.Ct. 498.

Or, if the agreement was in effect a lease of the land with an option to the lessee to purchase and keep the rent money as the first installment of the purchase price, dependent upon the prompt payment of the amount when due, the failure to pay at the time fixed by the parties terminated the right to purchase, the relation of landlord and tenant remained, and the plaintiff was entitled to his recovery.

But if the agreement contemplated an absolute sale, the fact that the first instalment of purchase money was called rent by the parties would not import into the the contract a condition such as that first mentioned above, and thereby change the relation of vendor and vendee into that of landlord and tenant. Calling the purchase money rent would not make it such, nor create a lien on the crops for its payment. The precise question was so ruled in Walters v. Meyer, 39 Ark. 560.

The question whether the parties stood to each other in the relation of landlord and tenant, depended upon the terms of the agreement between them. The jury found for the defendant, thereby finding that it did not exist. It is argued that the testimony does not warrant the conclusion. That consideration demands a recapitulation of the facts in evidence.

The husband of the original defendant was the owner of the land which is the origin of the controversy; he established his homestead upon it, and died leaving his widow and minor children in possession. At this juncture the plaintiff set up a claim to the land by virtue of a sale for non-payment of taxes. This claim was the cause of the negotiation between the parties. The plaintiff put the note in evidence and testified as to the transaction. There was no other testimony as to the terms of the agreement, except...