Osborne v. Fairley

WOOD, J., (after stating the facts). The appellant alleges in his answer that the minds of the parties to the contract did not meet upon the points of the contract, and that “he did not enter into or sign the contract understandingly,” and did not understand the legal meaning of the words “warranty deed” nor of the words “abstract of title to be approved by the attorney of the party of the second part. ’ ’ The appellant does not allege and prove that any fraud was practiced upon him by the appellee in the execution of the contract. If it be conceded that appellant did not understand the meaning of the words above set forth and of the legal requirements which the use of these words in the contract devolved upon him, yet, this would be purely a mistake of law and not of fact, and a mistake, too, of the appellant and not of the appellee. The appellant does not deny the contract and that the words set out above were used in the contract, the legal effect of which he says he did not comprehend. There is no contention that the appellee did not fully understand the meaning of these words or that he intended that they should be used in any other sense than that of their ordinary legal import. If there had been any evidence that the appellee knew and took advantage of appellant’s alleged ignorance of the meaning of these terms and had them inserted in the contract to reap some advantage of the appellant, the case would be different and would justify a denial of the relief sought by the appellee on the ground of fraud. State v. Paup et al., 13 Ark. 129, 137-8. But here, as before stated, the appellant does not even allege or prove a circumvention or fraud by which he was induced to enter into the contract. The most that can be said of his contention on this point is, that he is seeking to be relieved from the partial performance of his contract on the ground of a misapprehension by him of the legal purport of certain terms which the contract contains. If appellant were seeking reformation of the contract to conform to his contention he would not be entitled to such relief under the pleadings and proof in this case. See McGuigan v. Gaines, 71 Ark. 617; Varner v. Turner, 83 Ark. 131; Cherry v. Brizzolari, 89 Ark. 309; Frazier v. State Booth of Decatur, 101 Ark. 135; Lewis Werner Saw Mill Co. v. Session, 120 Ark. 105. Therefore, construing the contract as written, the only question upon final analysis is whether or not, under the pleadings and proof in the case after a failure upon the part of the appellant to furnish the appellee a warranty deed and abstract within sixty days showing a marketable title to the land in controversy, and upon his refusal thereafter to furnish a warranty deed and abstract showing a marketable title, the appellee was entitled to a partial performance of the contract by having the appellant divested of such title as he had upon the payment to him of the balance of the purchase money specified in the contract with deductions for such defects as the appellee was not willing to waive. The law applicable in such cases, as shown by the authorities, is aptly summarized by the attorneys for the appellee as follows: “Where the vendee is willing to accept less than a marketable title, he will be granted partial performance so far as circumstances permit with compensation for the residue, provided that in so doing the court is not making an impracticable or unenforceable order which would be the case; (1) where it is impossible to ascertain the proper amount of compensation, or (2) where the consent of a stranger to the contract would be required to decree partial performance, or (3) where the interest of the vendor in the premises is so insignificant as to make the case one for damages rather than for partial performance.” Judge Story says: “The general rule (for it is not universal) in all such cases is, that the purchaser, if he chooses, is entitled to have the contract specifically performed, as far as the vendor can perform it, and to have an abatement out of the purchase money or compensation, for any deficiency in the title, quantity, quality, description, or other matters touching the estate. But if the purchaser should insist upon such a performance the court will grant the relief only upon his compliance with equitable terms. 2 Story’s Equity Jurisprudence (15 ed.), sec. 1057; 36 Cyc. 740; Wood v. Griffith, 1 Sawnst. 54. Our own court in line with this doctrine held that in a suit for specific performance in a contract for sale, where the vendor’s wife refuses to join in the deed to convey her dower interest, the vendee may accept the conveyance as far as it is in within the power of the vendor to give and have an abatement of the purchase price to the extent of the value of the contingent interest of the wife. Hirschman v. Forehand, 114 Ark. 436. The obligations under the contract upon the appellant to furnish a warranty deed and an abstract of title, was for the benefit of the appellee only. The appellee could, therefore, waive the same and insist upon the appellant conveying to him such title-as he had; for under the contract the appellant sold the land in controversy to the appellee and agreed to furnish him a warranty deed. It was the right and province of the appellee, instead of insisting on a warranty deed and abstract showing marketable title, to accept such title as the appellant had with compensation for such defects, as the value of the wife’s dower, and assessments for drainage which were due and unpaid when the contract was executed, the amount of which was plainly ascertainable and not in dispute. St. Louis R. Co. v. Beidler, 45 Ark. 17-31; Bennett v. Fowler, 2 Beau. 302. Construing the contract as one which left it optional with the appellee as to whether or not he would pay the balance of the purchase money when the appellant furnished a warranty deed and abstract, nevertheless, the contract was one based upon a sufficient consideration and bound the appellant to make the abstract showing marketable title, and warranty deed within the time specified. Myer v. Jenkins, 80 Ark. 209; Ashcraft v. Tucker, 136 Ark. 447, 206 S. W. 896. If appellant had tendered the deed and abstract to the appellee and the appellee had failed or refused to accept the same, in that event only could the appellant have exacted the forfeiture of $100. The findings of fact by the court are correct and we, therefore, approve and adopt the same as our own. The trial court was guided by the principles of law here announced in rendering its decree, and the- same is affirmed.