Thomas v. Ellison

22 S.W. 95, 57 Ark. 481, 1893 Ark. LEXIS 110

Opinion

Cockrihh, C. T.

The lien claimed by the appellants is for work done and materials furnished in repairing a house on Mrs. See’s land. When they performed the work and furnished the materials, they knew that the land belonged to Mrs. See, and that the Ellisons, at whose instance the work was done, had only an oral contract, or perhaps only a privilege or option, to' purchase. The appellants thought the Ellisons would avail themselves of the privilege to acquire the title, and performed the work for them upon that basis of credit. They were not misled or deceived in reference to the matter by Mrs. See, or her agent, and neither Mrs. See nor her agent did anything to prevent the Ellisons from acquiring the title in accordance with their contract. There is nothing therefore to work an estoppel, and so let in the lien ag'ainst Mrs. See in that way. It is manifest that there was no claim established against Mrs. See’s interest in the land, upon any theory developed by the evidence. Wilkins v. Litchfield, 69 Iowa, 465.

If it be conceded that the Ellisons had an interest in the land which a court of equity would enforce, it would not have listened to any complaint from them unless they offered to comply with their contract to purchase by a tender of the purchase money and interest. The appellants could acquire nothing by the foreclosure •of their lien except the right to be subrogated to the Ellison’s privilege to purchase the property. But they would not be heard by a court of equity to ask for that relief until they had tendered the amount the Ellisons were bound to pay to establish the right. Brown v. Morison, 5 Ark. 217.

There was no tender offered or made, and the bill •ought therefore to have been dismissed.

Affirm.