Smith v. Berkau

• Decision Date: 20 March 1916
• Docket Number: 272
• Citation: 184 S.W. 429,123 Ark. 90
• Parties: SMITH v. BERKAU
• Court: Arkansas Supreme Court

184 S.W. 429

123 Ark. 90

SMITH v. BERKAU

No. 272

Supreme Court of Arkansas

March 20, 1916

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor reversed.

Decree reversed and cause remanded.

Manning Emerson & Morris, for appellant.

1. It was error to refuse to enter a decree for plaintiff for possession of the land. Time was an essential of the contract and payments at the times specified were conditions precedent. Hence a forfeiture should have been declared. 78 Ark. 574-578; 48 Id. 413; 87 Id. 593; 76 Id. 578; 4 Id. 413; 50 Am. Dec. 669-677.

2. The court erred in its findings of facts. The burden of showing payments was on the appellee. The three credits should not have been allowed. Appellant was at least entitled to a decree for the full amount unpaid.

Bradshaw Rhoton & Helm, for appellee.

1. Forfeitures are not favored in the law and never enforced in equity. 77 Ark. 305; 78 Id. 202; 98 Id 333. The findings of the chancellor on this question are against appellant on all the evidence and should not be disturbed. 83 Ark. 524; 98 Id. 331. The cases cited for appellant are not applicable.

2. The evidence sustains the chancellor in his finding in the matter of the three credits. 112 Ark. 341.

OPINION

SMITH, J.

Appellant is the administrator of the estate of his mother, who in her life time entered into an agreement to sell the property involved in this suit to appellee. A cash payment of $ 200 was made, and a contract entered into providing that the remainder should be paid at the rate of $ 30 per month. These payments--100 in number--were each evidenced by a note. The first note was payable August 15, 1910, and one note was to be paid on the 15th of each month thereafter, and all of the notes bore interest at 7 per cent. until paid. The contract for the sale of the land contained the following stipulation:

"But if the purchase money for said lands is not paid at the time and in the manner herein specified, upon the fourth default made in said payments all of said notes remaining unpaid shall at once become due and payable, and the obligation resting on the party of the first part shall become null and void, and the money theretofore paid on said purchase shall remain with and be the property of the party of the first part, and shall be considered as so much rent paid by said party of the second part for the use of said property from the date of this instrument to the date of such default in payment * * * And the said party of the second part hereby accepts the conditions of this obligation, and in the event of the failure to make payments as herein provided, waives all right and claim to said real estate, and to the money heretofore paid on account thereof."

Suit was brought by appellant to recover possession of the land, it being alleged that appellee had defaulted in the payment of ten consecutive notes and had thereby forfeited all rights under his contract of purchase.

Appellee denied that he had failed or refused to make payments required under contract, and alleged he had made payments amounting to $ 2,324.00 and that credit had not been given him for these payments.

Appellee assumed the burden of proof and introduced a statement of the account showing various payments. Of all the credits so claimed only ten are in dispute. The court disallowed seven of these items and allowed three of them as follows: July 5, 1910, cash $ 150; July 1, 1911, cash $ 192; March 8, 1912, $ 67.00.

The court found that appellee was six months in arrears in his payments at the time the suit was instituted, but refused to declare the contract forfeited, and the administrator has appealed.

It is first insisted that time is of the essence of this contract and that the court erred in refusing to hold that appellees rights thereunder had been forfeited.

It is also insisted that the contract makes the payment of the notes a condition precedent before any rights can be acquired under the contract.

It is settled that equity will not relieve against a vendee who has made default where time has been made of the essence of the contract and the forfeiture has not been waived. Nor will it relieve against the performance of some act which the contract has made a condition precedent. Neither principle however, controls here. This is a contract for the sale of land on a credit of one hundred months with the proviso set out above. The contract gives appellee a present right as a purchaser and upon payment of the purchase money he becomes entitled to a deed just as any other purchaser...