ARK.] . JOINER V. GREEN. ..845 JOINER . V. GREEN. 4-4564' Opinion delivered March 22, .1937. 1. VENDOR AND PURCHASER.—In action by appellant .to foreclose contract for the sale of real estate oh the ground that appellee . was. in default in making payments, evidence held to sustain ,finding that appellee was not in default. . 2. • VENDOR AND PURCHASER-Z. -EXCUSES FOR DELAY IN MAKING PAY-pUrchaser . of real estate on which 'the Federal Land , Bank held a • mortgage, was n6t • in default in making payments at times specified in contract where the delay•waS author-, ized by amendment to the Federal Farm Loan Act. 3. VENnOR AND PURCHASER—CONSTRUCTION OF CONTRACT.—A con-tia.ct for the sale of real estate wherein appellee assumed a mortgage on the land reading "The balance due • on above mortgage as of December 1, 1932, being $6,022.89; the assumption of tliis mort-:gage being as of . 12-1-32 balance, together with such delinquencies account of principal and interest, taxes, insurance premiums or • any other advances" held clarified by provision "* * *..purchaser agrees to pay the sum of one thousand dollars ($1,000) which is not in • addition to the $6,022.89 bift is payment on same * * * the proceeds of the one thousand dollars * * * is to be applied to the payment of delinquent taxes, inSurance premiums, delinquent payments and interest due on above mortgage" which shows that, while the thousand dollars was to be applied to ,appellant's della-quencies, it was part payment of the purchase ' price which was • reduced by tliaf • Appeal. from Pulaski Chancery Court; . Fronk II. Dodge, Chancellor.; affirmed.,., L. A. Hardin, for appellant.. E. W. Moorhead, for appellee. . MCHANEY, J. On January- 17, 1934, the , parties to this litigation entered into a real estate contract whereby
846 JOINER V. GREEN. [193 dppellant sold to appellee 105 acres of land near Jack-sonville, Arkansas, and certain lots in the town of Jack-sonville. The consideration expressed in the written contract is as follows: "For the consideration of one ($1.00) dollar, in hand paid, receipt whereof is hereby acknowl-• edged hy the seller, and the assumption by the purchaser of loan No. 21161 due the Federal Land.Bank of St. Louis, secured by first mortgage on the above described property, together with some other lands owned by the seller, and not herein contracted' to be conveyed. The balance due on above mortgage as of December 1, 1932, being $6,022.89 ; the assumption of ;this mortgage being as of 12-1-32 balance, together, with such delinquencies account of principal" and interest, taxes, insurance premiums or any other advances. Balance due on this mortgage is payable in semi-annual installments of $227.50 each due June and December 1st of each year. As , a further consideration purchaser agrees to pay the sum of one thousand ($1,000) dollars which is not in addition to the $6,022.89 but is a payment on same, in the following manner, to-wit: - "Three hundred ($300) dollars at the time of signing of this contract, the receipt whereof , is hereby acknowledged by the seller. "Seven hundred ($700) dollars in the form of a note due as follows : April 1, 1934, $300 ; December 1, 1934, $400. Payment of said note is secured by a first mortgage on certain real estate situated in Arkansas county. "It is further agreed fiY and between the parties hereto, that the proceeds of the One thousand ($1,000) dollars above mentioned is.to be applied to the payment of delinquent taxes, insurance premiums, delinquent payments and interest due on above mortgage, and any other aaVances now due thereon; and the balance thereof is to be paid to the Federal Land Bank of St: Louis to apply on said mortgage held bY the Federal Land Bank" Appellee further agreed to keep the taxes paid on the property purchased .by him, and the improvements insured, with loss payable clause to the Federal Land Bank, and in such amount as remiested-by it. Time was made the essence of the contract in the prompt payment
ARK.] JOINER 'V. GREEN. 847 by the appellee of all payments due on the note for $700 above mentioned, and the regular- semi-annual: payments due . the Federal Land.Bank uhder its mortgage, including taxes.and insurance, and if default is made: the appellant was given the right to treat .the contract: breaChed and was given the option to 'declare the entire balance due, or :rescind the contract. In case of . reScissiOn, all moneys paid by appellee'*were to .be considered as rent for the property and immediate 'peaceful possession was to be surrendered— The contract contains a number of otber provisions, but we think the above are sufficient for the purpose, of the decision in this .case. Appellant brought this: actioti ill the Pulaski •circuit cOurt, but on niotion of appellee it . was transferred to file chancery court, where appellant amended hiS couiplaiUt and sought a foreclosure: on the .sales contract:, Appellee answered, denying that he had-breached the contract ,with appellant and. alleging the performance of his contract by the payment of the $1,000 fo the Federal Land Bank, as provided . therein, and that, same was applied upon del linquent taxes, insurance premiums, etc.; which appellant ha&previously failed to . pay.. :He further alleged. that appellant, by June 1, 1935, began to make demands.u.pon him for -the payment of more money, stating fhat; there was still due from appellee the.said sum, of $6,022.89, and that he had not paid the $1,000 aforesaid.: Appellee. fur-, ther alleged in his answer that there wa , s due the. Federal Land Bank under said mortgage the June , 1st. and, Decem-ber .1, 1935, -interest and principal :payments minounting to $367.52, to-which penalty interest should be added *to the delinquent installments mentioned from due. • dates until paid at 5 per cent. ;, that under amendments to the. Federal Farm Loan. Act, the principal. portions . of. all semi-annual installments due . on said loan may be- deferred until . July 1, 1938,. and .after deducting the two principal payments of $67.12 each', which may . be deferred as aforesaid, there was past diie . at that time only $233.28, together with 5 per cent, interest from due date. ' He . .fur ther alleged that on Uccount of a fire, 'resulting in . the destruction of a barn- On the premi§es insured, there Was
848 JOINER v. GREEN: [193 due, from the insurance company, a sum more than sufficient to take up all the delinquent balance due the Federal Land Bank; He further alleged -that there-was due tbe Federal Land Bank as of December 1,'1935, the surn of $5,832.13, which is more than he agreed to pay appellant after he received credit for . the- $1,000, which he had . already paid on said land and the court :was asked . to require appellant to pay the difference so as to 'reduce said mortgage to a sum equal to-that :agreed upon in the contract, less the $1000 aforesaid, or a balance of $5,- 022.89 only. . . . . Trial resulted in a decree in* appellee's favor holding that .he is not delinquent under the terms of his contract with appellant and the decree dismissed appellant's complaint for want .of equity. The trial court waS correct in so'holding. It is undis: puted 'that appellee paid tbe $1;000 mentioned in . the contract according to the terms thereof, and that he has' since paid all Sums accruing under themortg,age to the Federal Land Bank . that -he was required to pay -under -existing law,hecause the principal' payments d.ne 'and Which'would be delinquent, are authorized te be deferred.thider amendments to the Federal Farm Loan Act, and' have been deferred because thereof, and are not delinquent. It is further undisputed that the' $1,000 paid' was used to pay up app ellant's delinquencies as of December 1; 1932. Appellant 'contends that the folloWing language in the 'dui-tract : "The balance due on'abov6 mortgage as of becem: ber 1, 1932, being $6,022:89 ; the assumption of ibis mortgage being' as of 12-1-32 balance, together with such delinquencies account of principal . and interest, taxes; insurance premiums or any Other advaneeS," shows that appel-lee was to pay more than' the $6-,022.89 . mentioned. While the above language might appear to be ambiguous, taken' alone, the next clause of the contract clarifies it and makes it -certain that the total purchase- price to appellee' was $6,022.89, and that what followed the mention of that sum-in the above-quoted clause of the contract is merely ex-. planatory, showing what enters into :the making up a said sum. .The. next clause is : "As a further cOnsidera-
ARK.] 849 tion purchaser agrees to -pay the sum of one thousand ($1,000) dollars . which is not in addition to the $6,022.89 but is a payMent on same, in the following manner, to-wit." This language is too plain for misunderstanding.- It. .necessarily follows- that the $6,022.89 -was the total purchase price to appellee, -and that the $1,000 mentioned -in the contract -to be paid by appellee as. therein set out, while it was to .be applied to appellant's delinquencies, it was a part payment of the purchase price which necessarily reduced the total purchase . price by said sum. While appellant assumed and agreed. to . pay. the balance due as of .December :1, .1932, it. was agreed that said.balance .was the sum stated-and t , hat the $1,000 payment, .although applied . largely . to:,the ,payment of appellant . 's delinquencies,, it i •,was . in reduction - by. that amount of the total purchase price. .The court found that the total delinquencies amounted to $726.59, which was. chargeable against the $1,000 payment-made by appellee. The result was that appellee -was not delinquent, and- the' court.correctly dismissed . . his complaint. We find no error, and the judgment .is affirmed. . -. , •
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