Smith v. Joyce

• Decision Date: 21 December 1914
• Docket Number: (No. 79.)
• Parties: SMITH v. JOYCE.
• Court: Arkansas Supreme Court

171 S.W. 1183

SMITH v. JOYCE.

(No. 79.)

Supreme Court of Arkansas.

December 21, 1914.

Appeal from Circuit Court, Greene County; J. F. Gautney, Judge.

Suit by C. H. Joyce against E. J. Smith. From a judgment for plaintiff on demurrer to the complaint, defendant appeals. Reversed and remanded, with directions.

The complaint in this cause alleged that on March 1, 1913, appellant executed to appellee a bond for title, a copy of which was attached to the complaint and made an exhibit thereto, in which he agreed to convey to appellee certain lots in the city of Paragould, Ark., on condition that appellee should pay him $25 cash and 25 notes, of $15 each, the first to be due on April 1, 1913, and the balance to be due on the 1st of each subsequent month, and one note for $6.25 due May 1, 1915. The total sum to be paid amounted to $406.25. Appellee paid $25 in cash, according to the terms of this contract, and, according to the allegations of the complaint, made other payments amounting, in all, at the time the suit was brought, to $43.18. There was no allegation that appellee had complied with his contract at the time the suit was filed, further than to make the payments above stated. The complaint further alleged that on the 26th of May, 1913, appellant and his wife made, executed, and delivered to one C. A. Mack a mortgage conveying said lots as security for a loan of $1,000 made appellant by said Mack, who, at the time, had no knowledge of plaintiff's equity, and that this mortgage had been duly recorded in Greene county, and had been executed without the knowledge or consent of appellee. It was not alleged that appellee had lost anything by reason of the mortgage that appellant had executed to Mack, nor was there any allegation of appellant's insolvency. Appellee prayed judgment for $86.36, which was twice the amount of the payments made by him under his bond for title. Appellant filed a demurrer to this complaint, which was overruled by the court, and, appellant having refused to plead further, final judgment was rendered against him, and he duly saved his exceptions and prayed an appeal, which was granted.

M. P. Huddleston and Robt. E. Fuhr, both of Paragould, for appellant. R. P. Taylor, of Paragould, for appellee.

SMITH, J. (after stating the facts as above).

This action was instituted under sections 1694 and 1695 of Kirby's Digest which, so far as they are relevant here, read as follows:

"Sec. 1694. If any person shall bona fide sell any tract or parcel of land, and shall make any written deed, conveyance, bond or other instrument in writing, assuring the title of such land to the purchaser thereof, and shall afterward sell and convey such tract of land to any subsequent purchaser, whether the subsequent purchaser have knowledge of the previous sale or not, such person shall be deemed guilty of a misdemeanor," and fined not less than twice the value of the land so sold.

"Sec. 1695. Any person who shall violate * * * the * * * preceding sections shall, in addition to the fine, * * * pay to every person so by him injured or defrauded, by any of the means therein mentioned, double the damages sustained by him, to be recovered by proper action."

The briefs contain an interesting discussion of the question whether the above statute is penal or merely remedial.

Appellee concedes that he could not recover if this statute was construed to be penal, and not remedial; but he insists that it is remedial in its nature and should receive a liberal construction to accomplish the purposes intended by the Legislature in its enactment. But we think there can be no recovery in either event. There is no allegation here that appellant is insolvent, nor is there any allegation of any offer of performance on appellee's part to which appellant cannot respond; and,...