1 ion upon that appeal. See Scott v. McCraw, I a valid one it renders him wholly insolvent. Perkins & Webber Co., 177 S. W. 901. Mrs. Scott owned extensive and valuable farming land in Chicot county, Ark., and the town of Eudora was laid off on her land, and appellant received large sums of money from the rent of these lands and from the sale of lots in the town of Eudora. Appellant bought and sold real property on an extensive proved to be profitable he lost money in most of them. During this time appellant, Scott, had accounts in several banks, some of which he kept in the name of his wife; but all of these accounts were subject to his check, and were drawn upon in the name of his wife by him, and no attempt appears to have been Upon the trial of the cause brought to uncover the property alleged to have been fraudulently conveyed by Dr. Scott to his wife and for her use and benefit, the court found that the said deed and the deed of trust were voluntary conveyances executed for the fraudulent purpose of defeating appellee in the col-scale, and while some of his investments lection of its judgment, and it was there decreed that if said judgment was not paid within five days, together with the interest and all costs, that the property there uncovered should be sold by the clerk of the chancery court as commissioner named for that purpose. Appellants complain alike of the action of the court in decreeing said convey-made to keep any separate account of the ances to be fraudulent, and of the court's action in decreeing a sale of said land by the commissioner named for that purpose, and it is now urged that in no event should said lands be sold by the commissioner of the court but that a sale thereof, if made at all, should be made under an execution duly lev-loans, although the use of this money exied upon said property. money received from the rent or sale of any of his wife's property, and there is nothing to indicate that the use which he made of his wife's money was intended as a loan, and no notes were ever given, nor was there other evidence that these transactions were tended over a period of about nine years. [1] We think the court erroneously found The proof shows that on the 5th of June, that the deed from appellant, Scott, to his 1913, an attorney representing appellee callwife for the said lot No. 10, block 9, was ed on appellant, Scott, at his home in the fraudulent. The facts appear to be that Dr. city of Little Rock and demanded payment Scott had but little, if any, property of his of the sum due appellee, but, failing to get own at the time of his marriage, but that his satisfaction, notified appellant, Scott, that wife acquired, through her father, a very suit would be filed against him at once to colvaluable estate; that the health of appel- lect the account. On the 10th of June therelant's wife had failed, and she was brought after the deed of trust conveying the propto Little Rock for treatment, whereupon the erty in question to Mrs. Scott was filed for said lot, which adjoined the homestead, was record in Chicot county, and on the 18th day purchased. The proof appears reasonably cer- of June thereafter the same instrument was tain that the initial cash payment of one-filed for record in Pulaski county; and while third, made at the time of the purchase of the proof does not show the value of the this lot, was advanced by Mrs. Scott's fa- property so conveyed, it is admitted that it ther, and that it was intended that the title embraced everything owned by appellant, Scott. to the lot should be taken in her name. It also appears reasonably certain that the remaining payments were made with funds belonging to his wife, and he testified that, although these remaining payments were made after the deed had been taken in his own name, it was understood and agreed that when the purchase money had been paid, and the vendor's lien for the purchase money had been satisfied, he should then convey said lot to his wife, and that he did so convey it to her within ten days after the last of the purchase money had been paid. [2] But the facts appear to be otherwise with reference to the lands described in the deed of trust, which recited that it had been executed for the purpose of securing an indebtedness of $16,000 due by appellant to his wife. We think the chancellor's finding that this conveyance was a voluntary one, and was executed for the purpose of putting the property beyond the reach of appellee, is not contrary to the preponderance of the evidence. It was alleged and admitted that appellant, Scott, conveyed in this deed of trust all of his property, and if the conveyance is [3] In the case of Waters v. Merit Pants Co., 76 Ark. 254, 88 S. W. 879, it was said: "It is settled by the decisions of this court that an insolvent husband, when justly indebted to his wife, may, without fraud, prefer her claim to that of other creditors, and make valid appropriation of his property to pay it, even though the result be to deprive other creditors of the means to satisfy their claims. But such transactions between husband and wife are viewed by the courts with suspicion, and the perfect good faith of the transaction must be established by proof. Where the wife asserts, as a consideration for conveyance of his property to her, a claim of debt against her insolvent husband for money loaned to him many years previous, no note or other written evidence of an agreement to repay being shown to have been executed, and the alleged debt having become stale by long lapse of time, as in this case, her bare statement should be corroborated by some other evidence of the existence of a valid debt, before the courts can accept it in support of the conveyance." There is no evidence of this indebtedness, except that of appellant, and, as has been said, there was no note or other writing evidencing its existence. Appellant dealt with the property in question as his own, and it formed in part at least the basis of the cred it extended him. Goodrich v. Bagnell Tim- 2. VENDOR AND PURCHASER 175, 334 REMEDIES OF VENDOR RECOVERY OF PURber Co., 105 Ark. 90, 150 S. W. 406. CHASE PRICE. [4] Nor do we think any error was committed by the court in ordering the sale of the property which had been uncovered by the decree of the court. In the case of Merchants' & Farmers' Bank v. Harris, 113 Ark. 111, 167 S. W. 709, it was said: So long as a contract for the sale of land remains unexecuted by a conveyance, the purchaser may, as a general rule, recover back or detain the purchase money, if the vendor's title is entitled to require. is not such as the purchaser under the contract [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 360, 959; Dec. Dig. 175, 334; Contracts, Cent. Dig. § 1203.] 3. VENDOR AND PURCHASER 130-SUFFICIENCY OF TITLE-RIGHT TO MARKETABLE TITLE. "The chancery court, having acquired jurisdiction for the purpose of setting aside the fraudulent conveyance, should not only grant the relief prayed for in that respect, but should proceed to enforce the lien by ordering the land in controversy sold to satisfy the judgment in favor of appellant. The chancery court, having assumed jurisdiction for one purpose, will retain it for all, and grant all the relief. legal or equitable, to which the parties are entitled. See Apperson v. Ford, 23 Ark. 746; Apperson v. Burgett, 33 Ark. 328; Cribbs v. Walker, 74 Ark. 104 [85 S. W. 244]; Dugan | v. Kelly, 75 Ark. 55 [86 S. W. 831]; Dickinson 4. VENDOR AND PURCHASER 130 "MARv. Arkansas City Imp. Co., 77 Ark. 576 [92 S. KETABLE TITLE"-TITLE BY ADVERSE POSW. 21, 113 Am. St. Rep. 170]." SESSION. [5] We think, however, that an unreasonably short time was allowed to appellant in which to pay the judgment, and that under the circumstances more than five days should have been allowed for this purpose, and that the decree of the court below must be reversed on that account. Likewise the decree, in so far as it adjudges the conveyance of the said lot No. 10, block No. 9, to have been fraudulent, is reversed, but as to the property described in the deed of trust the decree is affirmed. The cause will be remanded, with directions to the court below to enter a decree in accordance with this opinion. A purchaser of land, before he is required to pay the purchase price, is entitled, unless stipulated to the contrary, to receive not only a good title, but one which is marketable. Purchaser, Cent. Dig. §§ 245, 246, 247; Dec. [Ed. Note.-For other cases, see Vendor and Dig. 130.] To be "marketable," within the meaning of that term as ordinarily understood, a title must be a clear record title, and title by adverse possession is not a marketable title, however perfect it may be. Purchaser, Cent. Dig. 88 245, 246, 247; Dec. For other definitions, see Words and Phrases, Where an action to recover back payments under an executory contract for the sale of land on the ground that the vendor did not have a marketable title was instituted and tried in chancery with no question being raised as to that being the proper forum, the case came before the Supreme Court for trial de novo, with a presumption in favor of the chancellor's MCCULLOCH, C. J., disqualified and non- finding on every issue of fact, unless against the participating. MAYS v. BLAIR et ux. (No. 110.) (Supreme Court of Arkansas. July 12, 1915.) 1. DEEDS 6-CONVEYANCE OR EXECUTORY CONTRACT. preponderance of the evidence. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3645-3648; Dec. Dig. 895.] evidently used as descriptive of the area, and, as so used, was insufficient. [Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 65-79; Dec. Dig. 38.] 7. VENDOR AND PURCHASER 112 REMERECOVERY OF PURCHASE DIES OF VENDOR A description of land as all of the grantors' undivided one-third of one-ninth interest as A written instrument stated that, in con- heirs of L. in land described as part of a specisideration of $2,000 in cash and $8,000 to be fied quarter section was not a good description paid by a specified date, defendant thereby since, the interest of the grantors being desiggranted, bargained, sold, and conveyed to plain-nated by other language, the word "part" was tiff, his heirs and assigns, certain described real estate; that it was understood and agreed that plaintiff, his heirs and assigns, should, within the time specified, have the right and option to pay the balance of the purchase price, and defendant thereby obligated himself to receive it and make a warranty deed, with complete abstracts certified up to date; that, should plaintiff fail to do so, all of his rights thereunder should be forfeited, and title should revert at once to the grantor, his heirs or assigns, without any other deed of conveyance or instrument of release being executed; that defendant thereby covenanted to forever warrant and defend the title; and that defendant's wife, for the consideration and purposes recited, thereby joined in the execution thereof and released and relinquished to plaintiff, his heirs or assigns, all of her claim to dower and homestead. Held, that this instrument, when considered as a whole, was an executory contract to convey, and not a deed of conveyance. [Ed. Note.-For other cases, see Deeds, Cent. Dig. 6; Dec. Dig. 6.] Where lots to which a vendor's title was unmarketable formed a substantial part of the purchase, the purchaser could refuse to pay any more on the purchase price and demand the return of the amount already paid. [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 199, 200; Dec. Dig. 112.] 8. VENDOR AND PURCHASER SENCE. 78-PERFORM TIME AS OF THE ES A contract for the sale of land provided for payment of the balance of the purchase price on January 10, 1913. On that date the parties by agreement changed the contract so as to make such balance payable in installments, and it was understood that the vendor should pro- | ance of the purchase price, and that for that ceed with the work of getting an abstract of reason he should not be permitted to recover. title and perfecting it. Held, that time was not of the essence of the performance of the contract by the vendor. [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 121-125; Dec. Dig. -78.] 339-PERFORMCURING DEFECTS IN 9. VENDOR AND PURCHASER Where time was not of the essence of the performance of a contract by a vendor, and the vendor cured all defects in his title specially called to his attention, but the purchaser, instead of demanding that other defects be cured, arbitrarily broke off the negotiations and declined to go further with the trade, he could not recover the amount paid on the purchase price, as the vendor still had the right to perfect the title so as to make it marketable. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. § 995; Dec. Dig. 339.] 10. VENDOR AND PURCHASER 334-REMEDIES OF VENDOR -RECOVERY OF PURCHASE PRICE. A contract for the sale of land provided that, in consideration of $2,000 in cash and $8,000 to be paid by January 10th, the vendor thereby sold to the purchaser certain described real estate, that it was understood and agreed that the purchaser within such time should have the right and option to pay the balance of the purchase price, and the vendor thereby obligated himself to receive such price and make a warranty deed with complete abstracts, and that, should the purchaser fail to make such payment, his rights should be forfeited, and the title should revert to the vendor, and neither party should owe the other any thing. Held, that the $2,000 was a payment on the purchase price, and not paid for the purpose merely of getting an option, and hence, if the vendor failed to furnish a marketable title, the purchaser was entitled to recover such $2,000, as well as any other payment. The court rendered judgment in favor of appellant for the recovery of the $1,000 paid subsequent to the sale, but denied recovery as to the $2,000 paid in cash at the time the agreement was reduced to writing. [1] The primary question in the case is whether or not the contract was an executed one, or whether it was executory; in other words, whether the instrument of writing executed by the vendor to the vendee was a deed conveying the title with covenants of warranty, or whether it was an executory contract to convey. Much depends in this case upon a solution of that initial question. In order to ascertain the exact legal meaning of the instrument, it will be set forth in full: "Know all men by these presents that for and in consideration of the sum of $2,000 to us cash in hand paid by Ed Mays, and the further sum of $8,000 to be paid by January 10, 1913, Geo. T. Blair and C. A. Blair, his wife, do hereby grant, bargain, sell, and convey unto the said Ed Mays, and his heirs and assigns, the following described real estate lying in the county of Searcy, state of Arkansas, to wit: [Here follows description by lot and block numbers of the 125 lots forming the subject-matter of the transaction.] It is expressly understood and agreed that the said Ed Mays, grantee, and his heirs and assigns, shall within, the time above named have right and option to pay the balance of the said purchase price, and the grantor herein obligates himself to receive the same and to make notations of the receipt of the same upon the margin of this conveyance, if presented to him for that purpose and upon the margin of the record thereof in the office of the recorder, and to make a warranty deed with complete abstracts certified agreed that, should the grantee fail to do so, up to date. And it is further understood and then all of his rights under this instrument of conveyance shall be forfeited, and the title shall revert at once to the grantor, his heirs or assigns, without any other deed of conveyance or instrument of release being executed, and grantor owes grantee nothing and grantee owes grantor nothing. The said Geo. T. Blair, grantor, hereby covenants with the said Ed Mays, grantee, heirs or assigns, that he will forever warrant and defend the title to the property above Revers-granted against the lawful claims of all persons [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 959-980: Dec. Dig. 334; Contracts, Cent. Dig. § 1203.] Appeal from Searcy Chancery Court; T. H. Humphreys, Chancellor. Action by Ed Mays against George T. Blair and wife. From a judgment for plaintiff for an insufficient amount, he appeals. ed and remanded, with directions. Bratton & Bratton, of Little Rock, for appellant. S. W. Woods and A. Y. Barr, both of Marshall, for appellees. whomsoever. And I, C. A. Blair, wife of the said Geo. T. Blair, for the consideration and purposes aforesaid, hereby join in the execution of this instrument with my said husband and release and relinquish to the grantee, his heirs or assigns, all of my claim to dower and homestead in and to the above-granted premises. Witness our hands and seals this 16th day of August, 1912." MCCULLOCH, C. J. This is an action instituted by appellant, Ed Mays, to recover a portion of the contract price which he had The instrument was executed by Blair and paid to defendant George T. Blair on the his wife and duly acknowledged and filed purchase of 125 lots in the town of Leslie. for record. It will be observed that the inThe agreed purchase price was the sum of strument just set forth contains the usual $10,000, of which $2,000 was paid in the be- form of granting clause, but it does not conginning and $1,000 paid subsequently. Ap-tain a formal habendum clause. The clause pellant's claim is that the vendor broke the following the description of the property concontract by failing to furnish a marketable stitutes, in substance, a stipulation that the title to the lots sold; and appellees, Blair vendee shall within the time named pay the and wife, claim that they furnished not only balance of the agreed purchase price, and a perfect legal title, but a marketable title, that upon his failure to do so all his rights and that appellant broke the contract by re-under the instrument are forfeit, "without fusing to take the property and pay the bal- any other deed of conveyance or instrument of lease being executed," and without re turn of any part of the purchase money paid. On the other hand, the stipulation is that the vendor shall, when the payment is made, make indorsement on the record and execute "a warranty deed with complete abstracts certified up to date." We think that, according to the decision of this court in the case of Kelly v. Dooling, 23 Ark. 582, the deed, when considered as a whole, must be considered as an executory contract to convey, and not as a deed of conveyance. The instrument under consideration in the case just cited was very much like the one we are now considering, the chief difference being that the deed in that case contained an habendum clause, but there was other language which tended to show that the parties did not intend it as a deed of conveyance. Chief Justice English, speaking for the court, said: "Looking at the whole instrument, and deriving the intention of the parties from all of its provisions construed together (Sheppard's Touchstone, 87), we think it can be regarded as nothing more than a bond for title or agreement to convey, on payment of the remainder of the purchase money, such instruments being in common use, in our system of conveyancing, where lands are sold upon credit, though it is not usual to find them so unskillfully drafted." [2, 3] We will treat the instrument, then, as an executory contract to convey, for so it is according to the doctrine of this court announced in Kelly v. Dooling, supra. Now, the law is very well settled as to the respective rights of vendor and vendee in sales of land. "A purchaser of lands may," as is stated in a standard text-book on the subject, "so long as the contract remains unexecuted by a conveyance, as a general rule, recover back or detain the purchase money, if the title of the vendor be not such as the purchaser is, under the contract, entitled to require." Maupin on Marketable Title to Real Estate (2d Ed.) 586. It is equally well settled in the law that a purchaser under an executory contract is entitled, before he is required to pay the price, to receive not only a good title, but one which is marketable. He is entitled to receive "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." Tupy v. Kocourek, 66 Ark. 433, 51 S. W. 69. This subject was thoroughly reviewed by Judge Battle in the case of Griffith v. Maxfield, 63 Ark. 548, 39 S. W. 852, where it was said, quoting from Sugden on Vendors, p. 385, that under such circumstances "the title to the estate ought, like Cæsar's wife, to be free from suspicion." We went over this subject thoroughly in the recent case of Leroy v. Harwood, 178 S. W. 427, and the rule on this subject so often announced by this court was adhered to. [4] There are no fixed rules for the determination of the question whether or not a The decided upon the facts of each case. better view, according to the authorities, is that title by adverse possession does not constitute marketable title which a purchaser of land is bound to accept. It must, in other words, be a clear record title in order to be "marketable" within the meaning of that term as ordinarily understood. It will be observed that the contract in this case provides that the vendor shall "make a warranty deed with complete abstract certified up to date." That language refers only to the abstract itself, and not to the quality of the title; but, aside from any particular language in the contract, there is an implied agreement, unless stipulated to the contrary, that the purchaser shall receive a marketable title. Such is the undoubted effect of our decisions on the subject, which seem to be thoroughly in accord with the general trend of authorities. The action [5] The facts must therefore be looked to in order to determine whether a marketable title was furnished in this case. Appellant says that the title was not marketable; whereas appellees insist that the title is not only good, but is marketable. was instituted in chancery and tried there, and no question has been raised by the parties as to that being the proper forum. The case therefore comes to us for trial de novo, with the presumption in favor of the chancellor's finding upon every issue of fact unless it is found to be against the preponderance of the evidence. Nearly all of the lots-all but five full lots and four half lots-form a part of a tract of land which is referred to in the pleadings and proof as the Blair land. It was land entered from the government by one Samuel Leslie, and the title was acquired through mesne conveyances by one Joseph Blair, the father of appellee Geo. T. Blair. The other lots formed a part of a tract of land which is designated in the pleadings and proof as the Leslie land. That tract was also owned by Samuel Leslie, and he remained the owner until the time of his death. Appellees claim title under the heirs of Samuel Leslie. Now, the testimony establishes a perfect record title, which is a marketable title, as to the Blair land. tract was set apart by decree of the chancery court to M. J. Blair, the tract so assigned being a portion of a certain forty acre subdivision, and it is properly and accurately described in the decree by metes and bounds. It contains 25 acres. Appellees claim under a deed from M. J. Blair to J. E. Blair, in which the vendor merely described the tract as "all of my one-third interest in section 23, township 14 north, range 15 west"; but, after the attorney who examined the abstract of title discovered this defect in the description and called attention to it, appellees procured a deed from M. J. Blair curing the defective description and containing a descrip That decree referred to above. We entertain no doubt, therefore, about the title to the Blair land being perfect and such as came up to the implied contract of the vendor to furnish. [6] The title to those lots which are carved out of what is known as the Leslie tract stands in a different attitude with respect to its completeness. There were nine children of Samuel Leslie. Some of the children died, and appellee Geo. T. Blair purchased from some of the heirs interests equal to nearly an undivided one-third of the whole tract. Each of the deeds contained the following description: "All of our undivided one-third of one-ninth interest as heirs of Samuel Leslie, deceased, in the following described lands, situated in Searcy county, Arkansas, to wit: Part of the northwest quarter of the northwest quarter of section 26, township 14 north, range 14 west." That was not a good description. Adams v. Edgerton, 48 Ark. 419, 3 S. W. 628; Tatum v. Croom, 60 Ark. 487, 30 S. W. 885. It is insisted that the word "part," in the description, refers to the interest, and not to the area conveyed. It might be a good description if that word could be so construed. The interest, however, is designated by the use of other language, and it is evident that the word "part" was used as descriptive of the area, and it is insufficient within the rule announced by this court in the above-cited cases and others. [7] Two of the Leslie heirs bought the interests of the others, and in a partition suit brought by those two heirs against appellees a certain part of the tract was allotted to the latter in severalty, and it was described by metes and bounds. Appellees have been in possession of that part (and it is the part out of which these lots were carved), and fenced the same and remained in possession until the sale to appellant. A perfect title by limitation was acquired by appellees as against all claimants who were sui juris. When this defect was pointed out, appellees procured deeds from three married women among the heirs, describing the land by metes and bounds, so it appears from the record that they have a perfect title by limitation. The defective description in the deeds of the Leslie heirs to appellees prevents the title from being a marketable one, and appellant was not compelled to accept it. Those lots formed a substantial portion of the purchase, and, unless a marketable title be furnished, the appellant can refuse to pay any more on the purchase and demand return of the amount already paid. [8, 9] That, however, does not necessarily mean that appellant has shown his right in this case to recover, for we think, under the testimony, his own conduct with respect to the transaction is such that he is not at this time entitled to demand a return of his money. The contract, it will be observed, One purchase price on January 10, 1913. On that date the parties by agreement changed the contract so as to make the balance of $8,000 payable in installments, $1,000 of which was paid by appellant at the time. It was understood at that time that appellees should proceed with the work of getting the abstract of title and perfecting the title, and the chancellor found, correctly we think, that time was not of the essence of the performance of the contract. Appellees furnished an abstract of title which was submitted to an attorney by appellant for examination, and certain defects were pointed out. of them was the defect in the description in the M. J. Blair deed, which was corrected at once by a new deed, as before stated. The other defect pointed out was that the three heirs of one of the Leslie children who, it is said, was insane, were married women, and that the statute of limitation did not When that defect was run against them. called to the attention of appellee Geo. T. Blair, he at once had that corrected by procuring deeds from the three married women, describing the land correctly by metes and bounds. When this was done, Blair went back to appellant for the purpose of closing the deal, and appellant, according to the testimony, refused to negotiate any further or to complete the purchase. It is evident that appellees were doing all that they could to fully comply with the undertaking to furnish a marketable title, and they did, in fact, cure all the defects which were specially called to their attention. If the other defects in regard to the description in the other deeds had been insisted upon, appellant would have been in the attitude to demand that those defects be cured, but, instead of doing that, he arbitrarily broke off the negotiations and declined to go further with the trade. Appellees still had the right, and have now the right, under the contract, to perfect the title so as to make it marketable. [10] We think the court erred, therefore, in decreeing a return of the $1,000 paid by appellant on the contract price. The court decided against appellant as to the $2,000 on the ground that that sum was paid for the purpose merely of getting the option, but we think the court was in error as to that, and that, if appellant is entitled to recover anything at all, he should recover the full amount paid. The $2,000 paid at the time of the execution of the contract was a part of the purchase price, and if appellees have failed to comply with their contract by furnishing a marketable title, appellant would be entitled to recover everything he had paid. There is nothing in the contract which gives appellees any right to retain any part of the purchase money in the event that they fail to comply with their contract. The decree is therefore reversed, with di |