Dickason v. McNeil

HART, J., (after stating the facts). It is contended by counsel for the defendant, Mary E. Dickason, that the decree should be reversed because under the contract of purchase Mrs. Dickason was to have a deed that conveyed a good title to the St. Francis County lands and that this she never got. The deed conveyed from Moore to Mrs. Dickason 403 acres of land in St. Francis County, Arkansas, and counsel for the defendant now claims that because the deed to 169 acres of the land had a defect in the description there was no completed sale of the lands. The preliminary contract of sale between Moore and Dickason provided that Dickason should receive a warranty deed conveying a good title to the Arkansas lands. A warranty deed was duly executed and delivered to Dickason for his wife. Dickason. had the right to have the title to the lands examined before completing the sale. He also had the opportunity to do this, for abstracts of title were furnished him in compliance with the contract. He accepted Moore’s deed without asking legal advice about the title and entered into possession of the lands and has been in possession of them ever since. Even after he' says that he discovered that there was a defect in the description of the lands as contained in the deed, he did not offer to have the lands reconveyed to Moore by his wife; nor did he relinquish possession of the lands or offer to do so in favor of Moore. It is true he acquiesced in the sale of the lands to Mahan, but this was done on the ground that there was a deficiency in the quantity of lands. It was while the sale to Mahan was in progress of - negotiation that the defect in the title was discovered. Mahan refused to complete the sale on account of-this alleged defect. Even after this Mrs. Dickason continued in possession of the lands and never offered to relinquish possession of them or reconvey them to Moore. Under these circumstances her only remedy would be to recover on the covenants of warranty contained in the deed from Moore to her. The deed from Moore to Mrs. Dickason provided that she was to convey or cause to be conveyed to Moore within ninety days from the date of the deed four certain lots in Memphis by warranty deed conveying a good and merchantable title; and that, in the event she should fail or be unable to do so, she would in lieu thereof pay to the grantor the sum of $2,000. A vendor’s lien was expressly retained in the deed to secure the conveyance of the said lots or the payment of said sum of money as the case might be. The record shows that Mrs. Dickason did not have a good title to the Memphis lots, and that she did not convey or cause to be conveyed these lots to Moore. The ninety days had expired long before she discovered any defect in the title to the Arkansas lands. No excuse is shown why Mrs. Dickason did not carry out or attempt to carry out this provision of the deed. When all the circumstances are considered, as above stated, we are of tbe opinion that the decision of the chancellor was correct. The chancellor, without objection, allowed Mrs. Dickason an abatement of the purchase money to the extent of the deficiency in the amount of land and of the amount of money expended in making a survey of the land according to the agreement of Moore’s agents. The plaintiffs have presented a cross-appeal on the question of interest. Without going into details on this branch of the case, it is sufficient to say that we have examined the record and find the decision of the chancellor to be correct. The decree will therefore be in all respects affirmed.