Nakdimen v. Brazil , 137 Ark. 188 ( 1919 )

WOOD, J.,

(after stating the facts). It thus appears that there are two questions for decision.

First. Did appellee have the right to enforce money judgment in his favor against the appellant, because of the failure of the latter to tender a deed within sixty days from the time the original decree was rendered?

Appellee owned a valuable piece of real estate in the-city of Port Smith which he had mortgaged to the Midland Savings Loan Association to secure a loan of money in the sum of $15,000. Appellee sold and conveyed this real estate to the appellant. Part of the consideration for the conveyance was the assumption by the appellant of the mortgage debt of the appellee to the Loan Association, and the further consideration that appellant should convey to appellee a certain tract of land in Oklahoma.

After the contract between appellant and appellee for the sale and exchange of lands, a controversy arose between the Loan Association and Nakdimen, concerning the amount necessary to discharge the mortgage debt, which led to a suit being instituted by Nakdimen against the Loan Association to fix the amount of the indebtedness which he should pay on the mortgage by virtue of his contract with Brazil.

Brazil was made a party to the suit, and among other things in his answer he set up that Nakdimen had not only failed to comply with his contract to pay off the mortgage to the Loan Association, but had also failed to convey to appellee the Oklahoma lands. He made his answer a cross-complaint and asked that Nakdimen be required to convey the Oklahoma lands, “in accordance with the contract or pay the value thereof, the sum of $3,000.”

It was upon these issues that the court rendered the original decree upon which appellee, after affirmance of same on appeal to the Supreme Court, had execution issued and which he was seeking to enforce by collecting the sum of $3,000 with interest.

Thereupon, Nakdimen as already stated, filed what is designated his supplemental complaint tendering his deed to the Oklahoma land instead of the money in satisfaction of the judgment, and which the appellee refused to accept, insisting upon the payment of money. He contended that the sixty days had already expired and that appellant had, therefore, lost the right to satisfy the original decree by the tendering of a deed.

Now the contract between the appellant and the appellee which formed the basis of the original decree, was for the conveyance by the former to the latter of the tract of land in Oklahoma. The contract did not specify that the deed was to be executed within a certain time, and time for the execution and delivery of the deed was not of the essence of the contract.

The appellee in his answer and cross-complaint for specific performance of the contract in that suit, prayed that Nakdimen be required to convey the Oklahoma, lands in accordance with the contract or pay the value thereof, et cetera. He did not ask that time be made the essence of the decree and that unless the deed was made within that time the appellant should forfeit the privilege of making the deed.

The contract shows that only a’ deed to the land was contemplated and that the execution of the deed conveying good title to the land would have been a compliance with the contract.

The issues raised and facts developed in the suit in which the original decree was rendered, show that such was the primal object of the parties in entering into the contract. The decree of the court must be construed with reference to the issues raised and evidence adduced to sustain those issues.

When the original decree under review here is so interpreted, we are convinced that the manifest purpose of the chancery court, in rendering a money judgment with alternative privilege of satisfying the same by the execution and delivery of good and sufficient warranty deed in sixty days, was to effectuate the intention of the parties to the contract and insure the performance thereof within a reasonable time.

We must view the decree in the light of the contract and the facts and circumstances under which it was rendered. The principle applicable to the construction of the contract necessarily enters into and gives color to the recitals of the decree based upon it. The principle is well stated in 9 Cyc. p. 604-605, as follows: “In determining whether stipulations as to the time of performing a contract are conditions precedent, the court seeks simply to discover what the parties really intended; and if time appears, on a fair construction of the language and under the circumstances, to be of the essence of the contract, the stipulations in regard to it will be held conditions precedent. * * * * Time is of the essence of a contract when it is a material object to which the parties looked in the first conceptions of it. ” We conclude, therefore, that time was not of the essence of the original decree. Here the facts show that the appellee by the deed tendered, if the same conveyed a perfect title, would get what he and the appellant contemplated when they entered into the contract. Appellee was in no manner injured by the delay and a court of equity, in the absence of impelling language making time of the essence of performance, will not forfeit appellant’s right to give the appellee what his contract stipulated. See 9 Cyc. 604-607.

The conclusion that time was not of the essence of the original decree and that neither the court nor the parties so regarded it is irresistible in view of the conduct of the parties after the decree was rendered. The court granted the appellant ninety days in which to prepare and file his bill of exceptions which it would not likely have done if the court had had in mind that the sixty days, specified in the decree for the appellant to tender “a good and sufficient warranty deed,” was of the essence of the decree.

A preponderance of the testimony shows that the attorneys for the appellant and the appellee did not regard time as of the essence of the original decree, because after the decree of the lower court had been affirmed by the Supreme Court the attorney for the appellee in interviews with the attorneys for appellant left the latter under the impression “that if the title of the Oklahoma lan'ds were approved by a certain attorney,” Mr. Watts of Muldrow, Okla., “that there would be no further objection in closing the matter up by the acceptance of the deed to the lands by him, on behalf of his client. ’ ’

It would unduly prolong the opinion to set out in detail the testimony of the attorneys bearing on this issue, but it suffices to state that it shows that although the sixty days by the original decree had long since expired, the attorneys for the appellant and the appellee were endeavoring to determine whether the appellant could still make a deed conveying a good and sufficient title. If the attorney for the appellee had considered time of the essence of the decree, doubtless after the expiration of the sixty days instead of encouraging the attorneys for the appellant to believe that his client might accept a deed conveying perfect title, he would have explicitly informed them that time was of the essence of the decree, and that since the time had elapsed for the tender of the deed, his clients would insist that the appellant had forfeited his right under the decree to convey the land instead of paying the money to satisfy the decree.

Second. Does the warranty deed tendered by the appellant to the appellee convey a good and sufficient title as required by the original decree ?

The appellant deraigns title through the government from one Naki Baldridge, a Cherokee Indian, to whom the lands were allotted. Naki Baldridge was at the time a married woman. On August 11, 1918, by warranty deed she conveyed the land in suit to the appellant. Her husband did not join her in the deed. The land was wild and neither Naki Baldridge nor her husband had done any acts to impress it with the character of a homestead.

As we construe the Constitution of Oklahoma, the occupancy of the homestead is necessary in order to impress the lands with the homestead character. Art 12, Secs. 1 and 2, Const. of Okla. See Ball v Houston, 11 Okla. 233. See also Const. Enabling Act, Oklahoma, Annotated (Williams), p. 159, and cases cited in note. It is not necessary, under the statutes of Oklahoma, unless the lands constitute the homestead, that the husband should join the wife in the conveyance of the wife’s lands. See sec. 1143, Acts 1910 of Oklahoma.

We conclude, therefore, that under the Constitution and laws of Oklahoma, Nakdimen had “good and sufficient title” to the lands in controversy at the time of the tendering of his deed to the appellee and that the trial court erred in holding to the contrary.

The decree, for the errors indicated, is therefore reversed and the cause is remanded with directions to enter a decree requiring the appellee to accept the deed tendered by appellant and perpetually enjoining appellee from enforcing the decree in his favor by execution.