Swaim v. Beakley

HART, J., (after stating the facts). The deed from Kathleen Bealdey and N. B. Beakley to O. W. McAlister was executed on condition that if McAlister failed to pay for the land at the time recited in the deed, the conveyance should be void and the lands should revert to Kathleen Beakley and Etta Louise Jackson. In Cooper v. Green, 28 Ark. 48, it was held that conditions precedent are, as the term implies, such as must happen before the estate dependent upon them can arise or be enlarged, while conditions subsequent are such as, when they do happen, defeat an estate already vested. In the present case McAlister took the estate in fee subject to be defeated by his failure to pay for the land at. the time and in the manner stated in the deed. A comparison of the language used in the condition in the deed in the present case with the deed recited in the case of Cooper v. Green, supra, will show that it is a condition subsequent. This will also appear by a comparison of the condition with the condition referred to in the later case of Moore v. Sharpe, 91 Ark. 407, where the condition in the deed was treated as a condition subsequent. In the case of Cooper v. Green, supra, it is recited in substance that the deed is to 'be void if the.purchaser shall fail to pay the vendor either one of the installments of purchase money when they respectively fall due as recited in the deed. In the case of Moore v. Sharpe, supra, the condition is not set out but it is said that the deed was executed on the condition expressed therein that the grantee should build and complete a railroad within three yeaPs from the date thereof. According to the testimony of Dr. Beakley, as súon as he could do so he procured an order of the probate court to be made for the sale of the minor’s undivided one-half interest in the land in controversy and McAlister bid in the land at the sale. The probate court refused to confirm the sale because McAlister did not pay for it. Dr. Beakley and his wife were ready to carry out their part of the contract and deliver possession of the land to McAlister as soon as he paid, for it. McAlister failed to obtain the money to pay for the land and told Dr. Beakley the sale would have to fall through on that account. The chancellor properly found that the failure of McAlister to perform the condition expressed in the deed constituted a forfeiture of his interest in the land and that the Beakley® had a right to sell the land to J. H. and Emma J. Swaim. , It is true the testimony of Dr. Beakley is flatly contradicted by that of McAlister, but Dr. Beakley is corroborated by the other facts and icdrcumstances in the case. The testimony of all the witnesses shows that there was a panic in 1914,- and that it was very difficult to borrow money. 'This stringency in the money market continued until the fall of 1915. McAlister executed a deed to the plaintiff, Pat M. Swaim, on the 5th day of February, 1917. By that time the land in common with other lands in that section of the country had doubled in value. During •all the two years before the land began to rise in value, no effort was made by McAlister to obtain possession of the land or assert any right or title to it. The sale was treated by all the parties as having been abandoned and the rights of McAlister as having been forfeited for non-payment of the purchase money. Therefore, the chancellor was right in dismissing the complaint for want of equity and in quieting and confirming the title of J. H. and Emma J. Swaim in the land against any right, title and interest of the plaintiff. It will be remembered that J. H. and Emma J. Swaim had purchased the land from the Beakleys. The decree will be affirmed.