Holman v. Lowrance

Kirby, J., (after stating the facts). This proceeding was instituted to vacate a judgment rendered at a former term of court under section 4431 of Kirby’s Digest, it being alleged that said judgment was rendered against appellant without notice and obtained by fraud practiced by the successful party, and also that no sale of the lands for a specific performance of which the decree therein was rendered had been authorized or made by appellant, and no money whatever received therefor. It is necessary, in addition to alleging one of the grounds specified in said section, also to allege a valid defense to the action in which the judgment sought to be vacated was rendered and to make a prima facie proof of the truth of such defense if it is denied, the court being without authority to grant the relief until the ground therefor is established and “it is adjudged that there is a valid defense to the action.” Kirby’s Digest, § § 4431 and 4434; Chambliss v. Reppy, 54 Ark. 541; Knights of Maccabees v. Gordon, 83 Ark. 21; Ayers v. Anderson-Tully Co., 89 Ark. 163 The burden of proof is upon the appellant, and the officer's return of service was prima facie true, and the chancellor found, upon conflicting evidence, that appellant was duly notified of the pendency of the suit and the service of the summons therein as returned by the officer, and dismissed the complaint for want of equity; and we can not say that his finding was clearly against the preponderance of the testimony. Not having established the first ground for vacating the decree, it was not necessary to pass upon the question of the validity of the defense to the action. It is further insisted that the court erred in the rendition of the decree in the first cause, in effect divesting the title of the lands out of Holman and vesting it in the appellee without retaining the matter in its control to see that the purchase money first directed to be paid upon the execution of the deed was paid. A decree for specific performance on the part of the defendant, without finding or requiring performance by the plaintiff of his part of the agreement, is erroneous, and it should not be left to the plaintiff to determine when he shall perform the condition or whether he has performed it, and that question should be reserved and a time for performance should be fixed. 80 Enc. Pleading & Practice, 496; 16 Cyc. 483. The decree must provide for full performance by plaintiff; and if there are acts to be done on plaintiff’s part before he is entitled to performance by defendant, the decree should be so framed that defendant can not be compelled to perform except upon the condition that plaintiff do such acts. 36 Cyc. 756; Mason v. Atkins, 73 Ark. 491. It appears from the testimony that $115 of the $120, purchase money of the lands, was paid to Dan W. Jones, who was not the agent of Holman, the defendant in the suit, and the remaining $5.00 of the purchase money to John Hamiter, whose agency was denied by Holman. It is true the decree only required the defendant to execute to the plaintiff a deed conveying the lands upon the payment by the plaintiff of the agreed purchase price of $120, but, in default of his doing so within ten days from its date, the court further decreed 1 ‘that the title of said land shall be and is hereby divested out of defendant and vested in plaintiff, ” without reserving therightto decide whether the condition was complied with and the payment made before the title was divested. It should have required the money paid into court for defendant before divesting the title, and, if that was not done, denied any relief to the plaintiff and dismissed his complaint for want of equity. The law does not contemplate, in a suit for and decree of specific performance of a contract for the sale of lands, that the defendant shall be required to make a conveyance of the lands and then be remitted to an action against some third party, to whom money may have been paid by the plaintiff without authority, for the recovery thereof. For the error indicated, the decree is reversed, and the cause remanded with directions to enter a decree in accordance with this opinion.