Webb v. Marlar

• Decision Date: 01 July 1907
• Citation: 104 S.W. 144,83 Ark. 340
• Parties: WEBB v. MARLAR
• Court: Arkansas Supreme Court

104 S.W. 144

83 Ark. 340

WEBB v. MARLAR

Supreme Court of Arkansas

July 1, 1907

Appeal from Union Chancery Court; Emon O. Mahoney, Chancellor reversed.

Decree reversed and remanded.

Bunn & Patterson, for appellants.

1. It was error to hold that the contract bore no interest. When no interest is agreed upon, the rate is six per cent. Art. 19 § 13, Const.

2. No items should have been allowed as credits alleged to have accrued after the institution of the suit. 21 Ark. 137; 15 Ark. 315; 21 Ark. 110.

3. "A suit for specific performance of a contract for the sale of land can not be maintained by the purchaser, unless he shows that he has paid the purchase price, or tendered it to the vendor before the commencement of suit, or shows a good excuse for his failure to make such payment or tender and avers his ability, readiness and willingness to pay." 4 Am. & Eng. Ann. Cas. 849.

W. M Van Hook, for appellee.

1. The chancery court, having rightfully assumed jurisdiction of the case for certain purposes, will grant complete relief. 75 Ark. 52.

2. Where a verbal contract for the sale of land has been fully performed by the purchaser, specific performance will be decreed, if a failure to perform will operate as a fraud. 1 Ark. 391; 15 Ark. 315; 19 Ark. 50. And where the purchaser has entered into possession and paid the consideration. 21 Ark. 137.

3. If it be conceded that appellee has not fully paid the purchase price, the case should not be dismissed without giving plaintiff an opportunity to perform his contract. 73 Ark. 491.

OPINION

HILL, C. J.

Marlar brought suit against his father-in-law, J. L. Webb, and his brother-in-law, Shuler Webb, to require J. L. Webb to make him a deed to land which he had verbally sold him, and to cancel a deed which J. L. Webb had made to Shuler Webb. The plaintiff alleged that he had gone into possession of the land under a verbal contract, and that he had paid the purchase price, giving the dates of payments; and, in fact had overpaid the purchase money by the sum of $ 60.44. J. L, Webb admits the parol sale of the land, but takes issue with the amount of payments, and alleges that he has paid, at the instance of Marlar, for labor and material to be used on the land, $ 100, and paid taxes upon the land to the amount of $ 22.08, which, together with other items including interest, amounted to $ 446.43, which Marlar owed him. That before the final payment was due Marlar abandoned possession of the land, and he, Webb, was compelled to take possession of the same to save it from waste; and that he subsequently sold the land to Shuler Webb, and executed a deed to him.

The chancellor found that there had been a parol sale of the land for the sum of $ 182.50 without interest, and, after allowing Webb's claims for taxes and all other credits which the proof established that Marlar had paid him $ 185.66, the same being more than the purchase price thereon; and he further found that the Webbs were indebted to Marlar in the sum of $ 30 for the rent of the place after they took possession, and he gave judgment in favor of Marlar for the land and $ 30, and cancelled the deed to Shuler Webb, and required J. L. Webb to make a deed to Marlar; and upon the failure of Webb to do so a commissioner was appointed with power to make the same. The Webbs have appealed.

The court is unable to say that the findings of fact by the chancellor are unsustained by a preponderance of the evidence except as to one matter, which will be referred to later. It would not be profitable to review the details of the evidence.

Appellants urge that appellee was not entitled to specific performance because he failed to show that he paid or tendered the purchase price before the commencement of the suit, and failed to show a good excuse for not so doing and to aver ability and readiness to pay. Appellee claimed that he had overpaid the purchase price, and this the appellants denied and went to trial upon that issue; the chancellor found, after settling accounts between them, that he had paid more than the purchase price. It was proper to settle all these matters in the suit. Norman v. Pugh, 75 Ark. 52, 86 S.W. 833. But if he had not paid it in full, under the decision in Mason v. Atkins, 73 Ark. 491, 84 S.W. 630, it would have been error for the court to have dismissed his suit without...