Solomon v. Keesee

Hart, J. (after stating the facts). It iis first sought to uphold the decree on the theory that the instrument copied in our agreed statement of facts was an absolute conveyance, and that the relation of landlord and tenant did not exist between the plaintiffs and the defendant, Stewart. This court has held that whether an instrument of writing is a deed or bond for title must be determined by the intention of the parties derived from the whole instrument, and, in the application of the rule, has held that instruments of a similar character are bonds for title or agreements to convey land, and not a present conveyance of it. Kelly v. Doolling, 23 Ark. 582, and Mays v. Blair, 120 Ark. 69. In this case Solomon and Hicks executed and delivered to Stewart an instrument binding themselves to make a deed upon the performance of the conditions mentioned, and Hicks on his part signed the same instrument to perform the terms which constituted the price of the land or the payment of rent. It would hardly seem probable that the vendors intended this as a present conveyance when only $300 out of $3,600, the amount of the purchase money, was paid. Although the instrument uses the words, “grant, bargain, and sell,” they are coupled with the added words, “and agree to convey”. When construed -with reference to these words and the surrounding circumstances, it would seem to have been their intention to execute an executory instrument. This view is strongly supported by the last clause of the instrument which binds Stewart to pay an agreed rental of $330 per annum. Then, too, the instrument binds the vendors to execute a warranty deed to the land, to be placed in escrow with a designated bank until the purchase price was paid. If the instrument is to he construed as a present conveyance, then there was no use to provide for the payment of rent or for the execution of this deed in escrow. When the contract is read from its four corners, in connection with the attending circumstances, we think the instrument was not a present conveyance, but was an executory contract to convey the land. Again it is sought to uphold the decree on the theory that the contract in question created the relation of vendor and vendee, instead of landlord and tenant. We do not agree with counsel in this contention. This court has held that by an agreement of this sort, the relation of landlord and tenant is created, with all its rights and incidents, referable to the time provided in the contract for that relation to exist. Murphy v. Myar, 95 Ark. 32, and Martin v. Allen, 154 Ark. 612. In the instant case -the contract contained the following: “It is" agreed that the second party shall take immediate .possession of said land at an agreed rental of $330 per annum, said sum, however, when so paid, to be applied upon above principal.” Pursuant to the contract, Stewart did take immediate possession of the land, and raised a crop upon it. If the section just quoted does not have the effect to create the relation of a landlord and tenant between the parties, it has no meaning whatever, and had just as well been left out of the contract. It was evidently placed in the contract for some purpose, and it would seem that the only purpose it could legitimately serve would be to create the relation of landlord and tenant between the parties until tlie whole purchase price was paid. In this way the vendor could secure himself the payment of the purchase price, and without it he would have but little security. There appears to have been no dispute that the cotton was grown on the premises, nor as to its purchase by Keesee & Co. with knowledge of that fact. From the views we have expressed, it follows that the court erred in dismissing the complaint for want of equity; and for that error the decree will be reversed and the-cause remanded for further proceedings in accordance with this opinion, and not. inconsistent with the principles of equity.