Vance v. Newman

• Decision Date: 09 April 1904
• Citation: 80 S.W. 574,72 Ark. 359
• Parties: VANCE v. NEWMAN
• Court: Arkansas Supreme Court

80 S.W. 574

72 Ark. 359

VANCE v. NEWMAN

Supreme Court of Arkansas

April 9, 1904

Appeal from Boone Chancery Court ELBRIDGE G. MITCHELL, Judge.

Action by A. J. Vance against John R. Newman and others. Judgment for defendants, from which plaintiff has appealed. Reversed.

STATEMENT BY THE COURT.

The plaintiff in November, 1900, brought an action for the specific performance of a contract in reference to land owned by defendants, which contract had for valuable consideration been duly assigned to plaintiff before the commence of the action.

The contract is as follows, towit:

"BOND FOR TITLE.

"Know All Men by These Presentss

"That we, Elizabeth Newman, a single woman, and Mary M. Newman, and John R. Newman, her husband, in the county of Boone, state of Arkansas, are held and firmly bound to T. R. Cave, of Westmoreland, Kansas, and E. L. Clendenin, of Harrison, in the county of Boone, in the state of Arkansas, in the sum of $ 1,000, to be paid to the said T. R. Cave and E. L Clendenin, to which payment we bind ourselves and our heirs executors and administrators, firmly by these presents. Dated this 10th day of August, 1899.

"The condition of this obligation is such that, whereas said T. R Cave and E. L. Clendenin have purchased from the said Newman lot No. 7, in block No. 4, in the old town of Harrison Arkansas, and have paid thereon $ 150, and are to make future payments as follows, viz: $ 100 on November 10, 1899; $ 125 on February 10, 1900, and $ 125 on August 10, 1900. If the said Elizabeth Newman, Mary M. Newman and J. R. Newman, upon the payment of said $ 350 and interest by the said T. R. Cave and E. L. Clendenin within one year from the date hereof shall convey to said T. R. Cave and E. L. Clendenin, and his heirs forever, a certain tract or parcel of land, with the buildings thereon, situated in Harrison, Boone county, Arkansas, and described as follows: Lot No. seven (7), in block No. four (4), in the old or original town of Harrison, Arkansas, according to the plat and survey of said town by M. La Rue Harrison, on file in the county clerks' office of Boone county, Arkansas, by a warranty deed in common form, duly executed and acknowledged (the premises then being in good condition as they now are, necessary decay and deterioration excepted), then this deed shall be void. * *

"ELIZABETH NEWMAN,

"MARY M. NEWMAN,

"J. R. NEWMAN."

Defendants filed their answer, and for defense set up, first, that the contract sued on was only an option, and only intended as such; second, that the contract was unilateral, signed only by the defendants, and could not be enforced for want of mutuality; third, that time was of the essence of the contract, and that plaintiff, having failed to perform or offer to perform within the time allowed, had shown no excuse for such failure, and was not entitled to the relief prayed.

On the hearing the court found in favor of defendants to the extent that he refused to order a specific performance of the contract, but ordered that defendants should return the money paid by plaintiff on purchase price, and gave judgment therefor. Plaintiff appealed.

Judgment reversed and case remanded.

G. J. Crump, for appellant.

The power of chancery courts to relieve against mistakes of law is a doctrine grounded upon exceptions, rather than rules. 1 Perry, Trusts, § 184; 13 Ark. 135; 12 Pet. 55. An instrument actually expressing on its face the intent and meaning of the parties, the fact that they thought it a mortgage, when in fact it was a conditional sale, does not change its character or effect. 56 Ark. 320; 49 Ark. 425; 46 Ark. 107. One cannot retain the benefit of a contract and at the same time repudiate its burdens. 17 C. C. A. 38; 40 Ark. 382. The law does not favor forfeitures, and will sustain one only on clear and satisfactory evidence. 30 Ark. 556; 44 C. C. A. 55; 61 F. 705.

J. W. Story, for appellees.

The vendee under a title bond is the equitable owner of the land, and the vendor holds the legal title as security for the purchase money. 52 Ark. 381; 29 Ark. 358. There can be no mortgage where there is no property to mortgage or debt to secure. 37 Ark. 312. A bond for title does not convey title. 47 Ark. 531; 39 Ark. 363. To ascertain the true intent of the parties, courts are not limited to the terms of the written contract, but will consider all the circumstances connected with it. 13 Ark. 112; 7 Ark. 505; 5 Ark. 321; 52 Ark. 42; 54 Ark. 6; 57 Ark. 65. There can be no specific performance of the contract. 4 Ark. 251; 23 Ark. 708; 19 Ark. 52; 87 Ky. 91; 68 Ark. 276; 30 Ark. 186; 38 Ark. 174; 11 Ark. 733; Bispham, Eq. §§ 366-7; Lawson, Cont. § 372; 3 Del.Ch. 189; 171 Ill. 642; 21 L. R. A. 131; Pomeroy, Contr. §§ 162-165; 49 N.H. 444; 104 Mass. 412; 58 Mich. 576. Time was of the essence of the contract. 24 N.E. 543; 30 N.E. 373; 21 S.W. 970; Bispham, Eq. § 377. There was no performance of the contract. 33 Ark. 340. The contract was an option, and not a sale. 13 S.W. 935; 44 Ark. 216.

OPINION

RIDDICK, J. (after stating the facts).

This is an action for specific performance. The first question in the case is whether the bond for title set out in the statement of facts amounts to a contract for a sale of the land, or only an option giving the assignors of plaintiff the right to buy at the price named within the time specified in the contract. The bond recites that "T. R. Cave and E. L. Clendenin have purchased from the said Newmans lot No. 7, in block No. 4, in the old town of Harrison, Arkansas, and have paid thereon $ 150, and are to make future payments as follows $ 100 on November 10, 1899; $ 125 on February 10, 1900, and $ 125 on August 10, 1900." There is nothing here to show that the $ 150 paid on the land was paid as an option. On the contrary, the language is that the parties have purchased the lot and paid thereon the sum named. This was, we think, a part payment on the purchase of the land, and there is nothing in the remainder of the contract to show that only an option was intended. The fact that one of the parties may have thought that the legal effect of this bond was only to give plaintiff an option to purchase within a year cannot alter the law or the bond, for he does not claim that he was led to adopt this view by fraud or representation of plaintiff.

Again, it is said that only the defendants signed the contract, and that its language shows that it was essential that the payment of the price should have been made within the time named in the contract. But the language of the contract shows that it was intended to be mutually binding on both parties. It recites the fact of the purchase, and that the vendees have paid a certain amount on the land, and that they are to make certain other payments. The only reason for saying that there was no mutuality in the contract is the fact that the contract was not signed by the assignors of plaintiff as well as by the defendants. With this exception the contract is complete in every respect, containing the names of the parties, a description of the property sold, and the price to be paid. After the contract was signed by defendants, it was accepted by the assignors of plaintiff, who thereupon paid nearly a third of the purchase price, thus making the land itself a sufficient security for the payment of the remainder due. Under these circumstances it is well settled that the signing of the contract by the defendants takes the case out of the statute of frauds, at least so far as defendants are concerned, and that the contention that there is a want of mutuality in the contract sufficient to defeat the action cannot be sustained. Slater v. Smith, 117 Mass. 96; Pomeroy on Contracts (2d Ed), § 75; Id. § 170, and cases cited.

We see nothing...