Swaim v. Beakley

• Decision Date: 01 April 1918
• Docket Number: 260
• Citation: 202 S.W. 476,133 Ark. 406
• Parties: SWAIM v. BEAKLEY
• Court: Arkansas Supreme Court

202 S.W. 476

133 Ark. 406

SWAIM v. BEAKLEY

No. 260

Supreme Court of Arkansas

April 1, 1918

Appeal from Lonoke Chancery Court; John E. Martineau, Chancellor affirmed.

Decree affirmed.

J. B Reed and W. A. Leach, for appellant.

1. Whether the instrument be a deed with a condition precedent or subsequent. McAlister was not in default until a proper deed was tendered and performance demanded. 30 Cyc. 730; 73 Ark. 491; 44 Id. 492.

2. A tender was made and a deed demanded by plaintiff and the chancellor's decree is against the evidence.

Jas. B Gray, for appellees.

The testimony shows that McAlister abandoned the trade and never tendered the money nor demanded a deed. He was guilty of gross laches and comes too late. He forfeited all interest in the land. 36 Cyc. 721; 103 Ark. 194; 10 R. C. L.; Ann. Cases. 1912 C. 560-1; 143 S.W. 715.

STATEMENT OF FACTS.

This was a bill in equity by Pat M. Swaim against N. B. Beakley Kathleen Beakley, J. H. Swaim and Emma J. Swaim for a specific performance of a contract of the sale of land, or for damages for the failure of the defendants to perform the conditions of a deed executed by N. B. Beakley and Kathleen Beakley to C. W. McAlister.

The defendants filed an answer in which all the material allegations of the complaint were denied and by way of cross-complaint they set up title in J. H. Swaim and Emma J Swaim which was acquired by a warranty deed from N. B. Beakley and Kathleen Beakley, the owners of the land, and asked that their title to said land be quieted. The deed from Kathleen Beakley and N. B. Beakley to C. W. McAlister, which is the basis of the controversy in this case, is as follows:

"For and in consideration of the sum of One Hundred Dollars to me in hand paid the receipt of which is hereby acknowledged and the undertaking of C. W. McAlister to pay Kathleen Beakley and W. A. Jackson Estate the sum of Thirty-four Hundred Dollars on receipt of deed from W. A. Jackson estate we hereby grant, bargain, sell and convey unto the said C. W. McAlister and to his heirs, successors and assigns upon the conditions hereinafter written the following described land situated in Lonoke County, Arkansas, to-wit: N.W. 1-4 Sec. 13; N.W. 1-4 N.E. 1-4 Sec. 13; N 1-2 S.W. 1-4 Sec. 13 and S.W. 1-4 S.W. 1-4 Sec. 13, 1 North 9 West.

"If said C. W. McAlister shall fail to pay the sum hereinbefore named within the times above set forth, this conveyance shall be void and all rights and liabilities of either party thereunder shall cease, and said lands shall revert to Kathleen Beakley and W. A. Jackson estate without any reconveyance from the said C. W. McAlister.

"Witness our hands this 13th day of June, 1914."

The deed was signed by Kathleen Beakley and N. B. Beakley and duly acknowledged and filed for record on the 13th day of June, 1914.

According to the testimony of C. W. McAlister, in the spring of 1914, he purchased the land in controversy from Dr. N. B. Beakley as agent for his wife, Kathleen Beakley, and Etta Louise Jackson, a minor, who owned the lands as tenants in common. McAlister purchased the land for $ 3,500, one hundred dollars of which was paid in cash and the balance was to be paid as soon as McAlister received the deed to the undivided interest of Etta Louise Jackson. J. W. Shewmake was interested in the contract with McAlister and was to furnish him the money with which to pay for the land. They knew that the interest of the minor would have to be sold under orders of the probate court of Lonoke county, in which the land was situated. At the time of this sale there was a panic and money was hard to get. McAlister knew that there had been an order obtained from the probate court for the sale of the minor's interest in the land. Shewmake told him that there was an error in advertising the land and he let the matter rock along and made no objection about the delay. He talked with Dr. Beakley about it and supposed when he was ready to close the matter up he would notify him. There was nothing said to him about either of them calling the trade off.

J.W. Shewmake testified that he had a half interest in the trade made by McAlister although the deed was taken in McAlister's name. He stated that he presumed that Dr. Beakley knew he was interested in the deal because his check paid the hundred dollars on the land; that there were over 330 acres of the land and that the land was worth twenty-five dollars per acre at the time of their purchase on June 13, 1914. On the 5th day of February, 1917, McAlister and wife executed a quitclaim deed to the land in controversy to Pat M. Swaim for the consideration of fifty dollars.

According to the testimony of Dr. Beakley he acted for his wife and as the guardian of Etta Louise Jackson, a minor, in the sale of the land. They each owned a one-half interest therein and McAlister knew of that fact. Dr. Beakley did not know that Shewmake was interested in the purchase of the land. McAlister understood that there would have to be an order of the probate court for the sale of the minor's undivided one-half interest in the land. An order was obtained to sell the minor's interest in the land in controversy together with other lands in which she had an interest in Lonoke County, Arkansas. The lands were advertised for sale under the order of the probate court and McAlister bid them in at one-half of the amount mentioned in the deed. Before the sale was confirmed by the probate court, McAlister said that he could not get up the money to pay for the land and would have to give up the sale. McAlister stated that he did not have any money and could not borrow any. Dr. Beakley knew that McAlister did not have any money. There was a panic at the time and money was hard to get. The probate court refused to approve the sale to McAlister and as a reason therefor recited in the order that McAlister had neglected and refused to...