McKim v. McLiney

465 S.W.2d 911
CourtSupreme Court of Arkansas
DecidedApril 12, 1971
Docket5-5512
StatusPublished
Cited by11 cases

This text of 465 S.W.2d 911 (McKim v. McLiney) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McKim v. McLiney, 465 S.W.2d 911 (Ark. 1971).

Opinion

465 S.W.2d 911 (1971)

Joe McKIM, Appellant,
v.
Jane Sutherland McLINEY et al., Appellees.

No. 5-5512.

Supreme Court of Arkansas.

April 12, 1971.

*913 Davis & Reed, Springdale, for appellant.

Crouch, Blair, Cypert & Waters, and Wade, McAllister, Wade & Burke, Springdale, for appellees.

FOGLEMAN, Justice.

Joe McKim alleges that the chancery court erred in sustaining general demurrers of Butane Service, Inc. and Jane Sutherland McLiney, et al, Trustees, to his amended complaint, which the court dismissed. We agree.

McKim alleged that he was the owner of the lands described in his complaint, and that he acquired his equity, ownership, title and interest in and to the foregoing lands by the following:

1. L-P Gas Company Warranty Deed to Joe McKim dated August 5, 1963, and filed for record August 6, 1963.
2. Quitclaim Deed from Cy Carney Et Ux to L-P Gas Company, dated April 16, 1970.
3. Purchase by Cy Carney of the entire assets of Butane Service Co., Inc. of Springdale, Arkansas on November 8, 1947, as reflected by contract exhibited.
4. Sam Ennis and Sylvia Ennis, husband and wife, Warranty Deed to Butane Service Co. of Springdale, Arkansas, dated April 8, 1946, and filed for record on April 20, 1946.

McKim further alleged that Jane Sutherland McLiney, et al, as Trustees for certain named persons were making an apparent claim of title and possession by reason of a recorded quitclaim deed from L. R. and Ethel Mae Bennett to John W. Sutherland, dated March 23, 1967, and Sutherland's recorded deed of gift, dated January 19, 1970, conveying the lands to Jane Sutherland McLiney, et al, as Trustees for Thomas M. Sutherland, Mark B. Sutherland and Christopher L. Sutherland. (These appellees will hereinafter be referred to as the Sutherland trustees.)

McKim then alleged that he and his predecessors in title had been the sole and exclusive owners of the above described lands (which he alleged to be "wild"), in actual or constructive possession (except for such part as may have been entered upon by John W. Sutherland during the preceding 3-year period), for more than 25 years prior to the filing of his amended complaint, during which time they had continually paid the taxes thereon. Appellant asserted that Butane Service Company, Inc. might claim some interest in the land because of its failure to execute a conveyance pursuant to its contract with Carney. McKim further alleged that he had no adequate remedy at law to establish his equitable title or interest, to quiet or confirm his title, to revoke or cancel clouds thereon, or to establish a trust implied in law for his benefit. He prayed that any claim of Butane Service be declared subservient to his *914 own and held subject to a trust in law for his use and benefit, and that this appellee be compelled to convey whatever title it had to him. He also prayed that the conveyances under which the Sutherland trustees claimed be canceled as clouds upon his title and that his title be quieted and confirmed.

Perhaps appellant's pleadings in many respects should have been more specific, but, under our code, pleadings are liberally construed and every reasonable intendment indulged in behalf of the pleader. Craft v. Armstrong, 200 Ark. 681, 141 S. W.2d 39. Particular liberality is accorded the pleader on demurrer. If the facts stated in the pleadings together with every reasonable inference which may be drawn therefrom favorable to the pleader constitute the substance of a cause of action imperfectly stated, a demurrer should be overruled. Nelson v. Berry Petroleum Co., 242 Ark. 273, 413 S.W.2d 46. When we apply these standards, we conclude that appellant stated a cause of action against both appellees.

THE DEMURRER OF BUTANE SERVICE, INC.

We agree with this appellee that the lands are not sufficiently described in the contract of sale between it and Carney to entitle McKim to have specific performance of the contract, absent other circumstances making that relief available. The only description in the contract which relates, in any way, to real estate is the statement of the agreement of Butane Service to sell and of Carney to buy "all the assets of whatever kind and nature of Butane Service, Inc., an Arkansas Corporation, except accounts receivable, this sale including all equipment and property as well as inventory of merchandise, which equipment and property is more specifically listed in Schedule A. attached hereto and made a part hereof." The schedule was not exhibited. We do not agree with Butane Service, however, that the contract did not relate to real estate. One clause in the contract calls upon the sellers to execute all necessary and proper deeds and other instruments required by the purchaser in order to execute this contract to the buyer's requirements. Other actions by the sellers were to be performed at the time of the delivery of the deeds and other documents to complete the sale. Another clause required the sellers to prepare all necessary deeds and other instruments within 15 days of the date of contract and to tender them to the buyer "with possession of all said property of sellers, at which time said purchase price will be paid by buyer." The buyer was given the option of using the name, Butane Service, Inc., or Co. or Company or any similar combination. From the language of the contract, a construction that the parties intended to include any real estate owned by the seller as part of "all the assets of whatever kind and nature" would certainly not be unreasonable. Even so, we have held that similar descriptions are not sufficiently definite and certain to furnish an adequate key to identification to form the basis for specific performance. Bowlin v. Keifer, 246 Ark. ___, 440 S.W.2d 232 (1969); Turrentine v. Thompson, 193 Ark. 253, 99 S.W.2d 585.

This does not mean that there are not any circumstances under which a conveyance by Butane Service can be compelled. Even though a written contract is defective because of an insufficient description of property, it will still be specifically enforced in equity if it is established that the case is taken out of the statute of frauds and evidence supplies proof of the proper description. Hirschman v. Forehand, 114 Ark. 436, 170 S.W. 98. See also Stephens v. Ledgerwood, 216 Ark. 404, 226 S.W.2d 587. Thus, if under the allegations of his complaint, appellant can show that the real estate described in his complaint was an asset of Butane Service subject to transfer under the contract with Carney, and produce evidence to take the case out *915 of the statute of frauds, he might well prevail.

The fact that McKim's title is based entirely upon a quitclaim deed executed by Carney dated April 16, 1970, does not constitute an impediment to McKim's enforcement of whatever rights Carney may have had against Butane Service. McKim's deed from L-P Gas Co., the grantee in Carney's quitclaim, was a warranty deed. A contract of sale of real estate creates an equitable estate in the purchaser which is alienable by deed, subject to the lien of the vendor to secure the purchase money. Roach v. Richardson, 84 Ark. 37, 104 S.W. 538; Whittington v. Simmons, 32 Ark. 377.

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465 S.W.2d 911, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckim-v-mcliney-ark-1971.