Sorrels v. Marble

• Citation: 218 S.W. 671,142 Ark. 300
• Decision Date: 23 February 1920
• Docket Number: 194
• Parties: SORRELS v. MARBLE
• Court: Arkansas Supreme Court

218 S.W. 671

142 Ark. 300

SORRELS v. MARBLE

No. 194

Supreme Court of Arkansas

February 23, 1920

Appeal from Columbia Chancery Court; J. M. Barker, Chancellor affirmed.

Decree affirmed.

Stevens & Stevens, for appellants.

The decree granting the relief prayed in the cross-bill is erroneous. The fact that Emerson waived the forfeiture as late as 1907 would not give Marble and his estate an indefinite time in which to pay and demand a deed. 77 Am Rep. 848; 68 Am. Dec. 87. While time is not ordinarily essential in specific performance, it is material, and the delay must be explained and accounted for. 4 Pomeroy, Eq Jur., § 1468; 146 S.W. 495. After unreasonable delay relief should not be granted. 2 Story, Eq. Jur., § 742. Evidently Emerson had waited as long as he should, and had notified the negro and canceled his contract and filed it away. The law presumes that every man in his private and official capacity does his duty. 25 Ark. 311; 7 Id 495.

The delay of Marble before death is sufficient to defeat his right to specific performance and the delay of his heirs defeats their rights. 6 Pom. Eq. Rem., § 814.

McKay & Smith, for appellees.

A preponderance of the testimony sustains the findings of the chancellor. Defendants were not barred by limitation or laches. Hanson v. Brown, 139 Ark. 60; 87 Ark. 394.

There was no necessity for defendants to bring an action for specific performance until the necessity arose. 113 Ark. 433; 9 Johns. (N. Y.), 448; 9 S.E. 91; 10 L. R. A. 125; 31 P. 424; 6 Metc. (Mass.), 346.

OPINION

MCCULLOCH, C. J.

The decree appealed from compels the specific performance of a written contract for the sale of a forty-acre tract of land in Columbia County. The contract was entered into in the year 1902 between R. L. Emerson, the ancestor of appellants, who was the owner of the land, and J. M. Marble, the husband and father of appellees. The price specified in the contract was the sum of $ 50, payable in three installments, evidenced by promissory notes bearing interest at the rate of ten per centum per annum from date until paid. The contract provided in substance that upon failure of Marble to make either of the payments when due all previous payments should be forfeited to Emerson, and that "the relation of landlord and tenant shall arise between the parties hereto for one year from January 1 immediately preceding the date of default. "

J. M. Marble took possession of the land under the contract, and built a four-room log house thereon, and occupied the land as a home until his death, which occurred in the year 1913. Marble left a widow and three children, two of whom are adults and one is an infant. They are the appellees in this case. Mr. Emerson died March 23, 1910, leaving his two daughters, one of whom is the appellant, Mrs. Sorrels. J. M. Marble made four different payments to Mr. Emerson on the purchase price of the land, which payments were indorsed as credits on the copy of the contract which Marble held in his possession. The payments were as follows: $ 7 January 8, 1903; $ 8 April 5, 1906; $ 2 April 1, 1907; and $ 32, date not stated. Marble also paid the taxes on the land from the date of the contract up to the time of his death, and his widow paid taxes after her husband's death up to and including the year 1917.

Appellant Mrs. Sorrels, took charge of her father's business, which was extensive, after the latter's death, and undertook to collect the outstanding notes and accounts. She found on her father's books the account against Marble and mailed a statement for the amount of balance due the same as other accounts, but she testified that she did not know at that time that it represented the purchase price of the land. She did not know anything...