Leroy v. Harwood , 119 Ark. 418 ( 1915 )

Wood, J.,

(1) (after statip.g the facts). The contract in suit was an executory agreement under which the appellant, for the consideration named, was to convey to the appellee the tract of land described by deed which would give her a clear title to the satisfaction of her attorney. The contract itself and the testimony of the parties thereto, which is not in conflict with the written contract,show that both parties contemplated that the appellee, for the consideration named, should acquire a fee simple title to the land) .and the contract and the uncontroverted, evidence show that before the appellee paid the purchase money, the appellant should execute to her a deed giving her a title which to her attorney appeared to be satisfactory. In other words, this contract was tantamount to an executory agreement for the conveyance of land by a warranty deed, and one which her attorney, from an examination of the title, could pronounce clear and satisfactory.

In Tupy v. Kocourek, 66 Ark. 433, we held that “one who contracts and pays his money for a title to land ought to get, not only a title that he can hold against all adverse, comers, but one that he can hold without reasonable apprehension of its being assailed, .and one that he can readily transfer if he desires, in the market."

In Whitener-London Realty Co. v. Ritter, 94 Ark. 263, we held that, “Under a contract for the sale of timber which stipulated that the vendor should furnish a conveyance .and abstract of title to he approved hy the vendee’s attorney, the vendee is entitled to a return of the purchase money paid hy him where the abstract of title tendered by the’vendor was submitted to the vendee’s .attorney and rejected by him in good faith.”

Of course, it was not contemplated by the parties to the contract under review that the attorney of the appel-lee should .arbitrarily or capriciously disapprove the title tendered by the appellant. But if he did not do this, and in good faith passed upon the title and declared the same unsatisfactory because, in his judgment, the title was not clear, then the appellee was not bound to pay the purchase money, although the title in fact might prove to be perfect.

(2) Now the appellant contends that he complied with the contract on his part when he tendered to the appellee a warranty deed 'and an abstract of title showing that the land involved had, by order of the probate court, been deeded by the original owner to the administrator of the estate of Soncini and by the administrator to the appellant as the surviving partner of Soncini, and by the administrator of Soncini, in conjunction with appellant as surviving partner of Soncini, to the ap-pellee.

The chancery court, as indicated in .a written opinion, went into an investigation of the title thus tendered and decided that the probate court had no jurisdiction to try and determine the ownership of this property. The chancellor found that the petition of Leroy to have the property conveyed by the administrator of Soncini to him as the surviving partner of iSoncini “was filed, and acted on by the probate court on the same day; that the administrator, heirs iand creditors were not notified or heard.”

The uncontroverted proof shows that the land in controversy was conveyed to the administrator of the estate of 'Soncini for a debt, and was by the administrator of the estate of Soncini conveyed to the appellant as the surviving partner of Soneini, 'and hy appellant as. the surviving partner jointly with the administrator of the estate of Soneini to the appellee. It was shown that Soneini had a widow and heirs surviving him. • Such being the case, it is unnecessary for us to determine the issue as to whether the probate court had jurisdiction under the statute to make these various orders and whether such orders in fact made the title perfect in the appellant. The probate court ordered the administrator of the estate of Soneini to convey the land to appellant as the surviving partner of Soneini. If this order was valid when executed, then certainly thereafter the probate court would have no power to direct the administrator to join in a conveyance of the- same land to appellee. These orders were inconsistent and contradictory.

The attorney for the appellee, upon an investigation of this title which lappellant tendered as a compliance with his contract, was not satisfied that the same would give to the appellee a clear title, and he wrote to the appellant, in part, as follows: “There is so much conflict in the orders of the prohate court and the rights of yourself land the rights of the heirs of M. Soneini, these heirs being minors, that I do not think that you have the legal right to convey the title, 'and sooner or later there will be litigation over it. ’ ’

The learned chancellor himself, after a thorough examination of the records and an elaborate review of the facts iahd the law, announces his conclusion on this point as follows: “I would not have accepted this title offered ¡by defendant as a perfect one or recommended same to a client as perfect.”

(3) It can not be said, in view of the above record, that the attorney of the appellee acted urbitrarialy or capriciously in disapproving the title tendered by the appellant. It suffices to say that the attorney was warranted in his conclusion that such title did not meet the requirements of the contract under the rule announced in Tupy v. Kocourek, supra. The appellant therefore did not comply with his contract, and the court did not err in refusing to permit him to amend his pleadings and to bring in new parties in order to enable him to take proof to show that he might be able to thereafter perfect his title if the same was not already perfect.

The decree was in all things correct 'and it is (affirmed.