Okolona Mercantile Co. v. Greeson

Wood, J. (after stating the facts) : There was no right of forfeiture for failure to pay the purchase money when due. The deed provides: “It is further understood and agreed that a lien is reserved on the timber herein sold to secure the payment of the notes above set forth, and if the said notes are not paid when due the parties of the first part shall have the power and authority to take immediate possession of said lands and timber, and to stop further cutting of same until the past-due obligations shall be paid and satisfied in full.” The right of appellants, therefore, upon failure to pay the notes when due, was not to cancel the deed and have the contract forfeited entirely, but only “to take immediate possession,” and “to stop further cutting of timber” until the past-due obligations “were paid and satisfied in full.” The above relief was granted appellants, and it was all they were entitled to under the express terms of the contract. It was wholly immaterial whether the intervener, Jones, had title by perfect deed from the Boyd-Hodson Lumber Company, the grantee, through sundry mesne conveyances. It is therefore unnecessary for us to pass upon that question. If the deed- of'the BoydHodson Lumber Company to its immediate grantee did not convfey good title, then the title still remained in the Boyd-Hodson Lumber Company. . Jones was in possession claiming title under the Boyd-Hodson Lumber Company, and it is not here complaining of his title. If the title was not in Jones, then,- before appellants could have the title cancelled, they would have to bring the owners of the title before the court. Jones, being in possession claiming title through deed from the Boyd-Hodson Lumber Company, could have defeated appellants’ claim for cancellation against him by showing title either in himself or some third person. See Dickinson v. Thornton, 65 Ark. 610. As to appellants’ right of possession and to injunction, the burden was on them. They do not allege or claim that Jones was a trespasser, holding without color of title. Jones is not asking for any affirmative relief. We find nothing in the pleadings or the proof to take the case out of the operation of the general rule placing the burden of proof, in real actions, upon the plaintiff. Dawson v. Parham, 47 Ark. 215, 217, 18; Dickinson v. Thornton, supra; Chapman & Dewey Land Company v. Bigelow, 77 Ark. 338-347; Carpenter v. Jones, 76 Ark. 163; Dowdle v. Wheeler, 76 Ark. 329; Mallory v. Brademyer, 76 Ark. 538. Jones being in the possession of the land for the purpose of cutting the timber under his claim of title through the Boyd-Hodson Lumber Company, he has the right to retain possession for that purpose after he has paid the purchase money. The contract so specified, and the court so decreed. Affirmed.