Hargis v. Edrington

Smith, J., (after stating the facts). We think the chancellor properly dismissed the complaint in this cause for the want of equity. It is true that a vendee in possession is not barred from suing for specific performance by delay for any period infringing his action, his possession being the continuous assertion of his claim. He may rest in security until his title or right of possession is attacked. Wright v. Brooks, 130 Pac. 968. Nor is time of the essence of this contract. But the evidence shows that the appellants did nothing toward the performance of their contract. They offered evidence to the effect that an extension of time was given, and that they were to pay interest at the rate of 5 per cent; but Edrington’s ■evidence was that only a reasonable time was given in which the payment was to be made at this rate of interest. The original note bore interest at the rate of 10 per cent. Appellants failed to pay the interest, and had apparently abandoned their claim to the land and ceased paying taxes upon it, and for five years these taxes were paid by Mr. Edrington. Appellants stood by and saw Mr. Edrington sell the land to St. John, and permitted St. John’s vendee to remove considerable timber from the land, and they saw St. John’s son enter upon the land and clear and improve portions of it, and after the disabilities of the minors had been removed, they made a trade with St. John, the consideration for which was a deed conveying to W. C. Hargis a portion of the land described in the bond for title, which included the only part of the land which the Hargis heirs had actual possession of. From 1903, when Edrington took possession of .the land until the spring of 1912, when the tender was made, there was no assertion of title to any of this land except such as resulted from the occupancy of the two acres, which they do not claim because of their conveyance to St. John, which included it. During this time, the situation of the parties had changed to some extent. Portions of the land have been cleared and improved and rendered more valuable, and these improvements were induced by the nonassertion of any claim upon the part of the Hargis heirs. Moreover, the tender which was made did not include the taxes which had been paid isinoe Mr. Edrington took possession of the land in 1903, and since that date no taxes have been paid by the Hargis heirs, and Edrington and his vendees exercised all the acts of ownership over the land, of which it was capable, except the small clearing of two acres. We think the evidence fairly shows an actual abandonment of the sale by both parties and a restoration of the property to the vender, notwithstanding the purchaser’s possession of a small portion of the land. It was their duty to assert their intention to perform their contract of purchase, within a reasonable time, when they saw their vendor was treáting the sale as having been rescinded. “Specific performance is relief which the courts will not give unless in cases where the parties seeking it come as promptly as the nature of the ease will permit.” Uzzell v. Gates, 103 Ark. 191, and cases cited. The decree is therefore affirmed.