Von Mosch v. Waldrop

STATEMENT OF FACTS.

S. A. Waldrop brought this suit against Gust Von Mosch to cancel a deed made by Preston H. Richardson to Gust Von Mosch and to vest the title to said property the plaintiff. The defendant, Von Mosch, filed an answer, asserting title in himself.

According to the evidence for the plaintiff, on November 5, 1927, A. A. Reece, cashier of the Caddo Valley Bank, at Norman, Arkansas, received a deed executed by P. H. Richardson and wife to the land involved in this lawsuit. Accompanying the deed was a letter signed by P. N. Richardson, the body of which is as follows:

"Gentlemen: Herewith find deed to land for Mr. Von Mosch. He instructed me to send deed to you. Send cashier's check to me at P. O. Box 11, Hot Springs, Arkansas."

The consideration recited in the deed was $125. On December 7, 1927, Reece delivered the deed to Von Mosch.

According to the testimony of S. A. Waldrop, P. N. Richardson execute and delivered to him a deed to the land in question on the 2d day of December, 1927, and the deed was duly filed for record on the same day. The consideration recited in the deed was $146, which was paid in cash. Before Waldrop received his deed, Reece told him that there was in a bank a deed to the same land from Richardson to Von Mosch. Richardson told Waldrop that he had the title to the land at the time he executed the deed to him.

According to the evidence for the defendant, the plaintiff was notified that there was a deed in the bank to the land, executed by P. N. Richardson to Gust Von Mosch. On October 10, 1927, P. N. Richardson wrote a letter to Gust Von Mosch in which he gave him a description of the forty-acre tract of land in controversy, and stated that he was in need of some money, and would sell quickly. He offered the land for $125 cash. He concluded the letter by stating that he had an offer of $100 for the timber, and wanted Von Mosch to let him know right away if he was interested. On October 22, 1927, Richardson wrote Von Mosch another letter, replying to one received from Von Mosch. In it he stated that he would make the deed and mail it at once, as he had need of the money. On November 4, 1927, Richardson wrote Von Mosch another letter, in which he told him he was mailing the deed to the Caddo Valley Bank. On November 19, 1927, Richardson wrote Von Mosch that he could rest assured that the title to the land was O.K.

He concluded the letter as follows:

"Now, Mr. Von Mosch, I am badly in need of some money, so I am going to ask you to look into this matter as soon as you can conveniently do so. Understand, I am not rushing you, but I have an obligation coming due on November 28 that I must meet. So you see my position.

"I have an offer on the place for a little more than I asked you for it, but, as I started with you, I am willing to stay on my proposition a reasonable time unless you decide not to purchase.

"Thanking you in advance for an early decision, I am,

"P. N. Richardson."

According to the testimony of Gust von Mosch, after the deed had been sent by Richards to the Caddo Valley Bank, at Norman, Arkansas, he had an examination of the title made, and found a missing deed, two unreleased mortgages, and also had to order a patent from Washington. He told Waldrop that he had title to the land before Waldrop received his deed. Von Mosch received the deed from the Caddo Valley Bank on December 7, 1927, and filed it for record on December 8, 1927.

The chancellor found the issues in favor of the plaintiff, and it was decreed that the deed from P. N. Richardson to the defendant, Gust Von Mosch, be canceled and annulled, and the defendant was enjoined from cutting or removing any timber or logs from said land. The defendant has duly prosecuted an appeal to this court. (after stating the facts). The decree of the chancery court was correct. In Chaffin v. Harpham,166 Ark. 578, 266 S.W. 685, it was held that a delivery in escrow is irrevocable until failure to perform the stipulated conditions. Again, in Ford v. Moody, 169 Ark. 649, 276 S.W. 595, it was held that, when a deed is delivered merely as an escrow, to take effect upon the performance of some condition by the grantee in the future, no title passes until the condition has been performed, (and it is immaterial that the grantee obtains possession of the instrument before the condition is performed.

In the case at bar, the record shows that Richardson sent the deed to the Caddo Valley Bank to be delivered to Gust Von Mosch upon the payment of the purchase money. Von Mosch was notified that Richardson was in need of money, and wished to sell at once. In each subsequent letter about the transaction Richardson notified Von Mosch that he was in pressing need of money, and must receive payment of the purchase price of the land quickly. On November 19, 1927, Richardson wrote Von Mosch, assuring him that the title was O.K., and that the Caddo Valley Bank had loaned him $100 on it. He had agreed to sell the land to Von Mosch for $125, to be paid in cash. He notified Von Mosch that he had an obligation coming due on November 28 that he must meet, and also that he had been offered a little more money than he asked Von Mosch for the land. He notified Von Mosch, however, that he was willing to stand by his proposition provided it was accepted within a reasonable time. The fact that he referred to November 28 as the date upon which he was in pressing need of money showed that he considered that a reasonable time. Instead of paying the purchase price of the land, Von Mosch waited until after Richardson had sold the land to Waldrop and had executed a deed to him for it, which Waldrop had filed for record.

It does not make any difference that Waldrop had notice that Von Mosch claimed title to the land. Under the facts presented, Von Mosch could only claim title to the land provided he complied with the condition upon which the sale was made. He was notified in express terms that Richardson was badly in need of money on the 28th day of November, and, under the circumstances, we think it was his duty to have sent the money promptly so that Richardson could meet his obligation. Not having done so, Richardson had the right to sell the land to some one else; and it did not make any difference whatever that the purchaser had notice of the contemplated sale to Von Mosch, because the latter failed to comply with the stipulated condition upon which the land was offered to him, and, upon his failure to do so, Richardson had a perfect right to sell the land to Waldrop. Waldrop paid the purchase money for the land and filed the deed for record before Von Mosch attempted to comply with the condition upon which he purchased the land. That condition was that he should pay the purchase price in cash. He did not offer to pay the purchase price until after the deed (from Richardson to Waldrop had been delivered and filed for record and Waldrop had paid the purchase money to Richardson.

The result of our views is that the decree of the chancery court is correct, and it will be affirmed.