{
  "id": 1664969,
  "name": "John E. BOX, Jr. and Ruth M. BOX v. R. F. DUDECK",
  "name_abbreviation": "Box v. Dudeck",
  "decision_date": "1979-02-26",
  "docket_number": "78-265",
  "first_page": "165",
  "last_page": "170",
  "citations": [
    {
      "type": "official",
      "cite": "265 Ark. 165"
    },
    {
      "type": "parallel",
      "cite": "578 S.W.2d 567"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
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    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
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    {
      "cite": "257 Ark. 76",
      "category": "reporters:state",
      "reporter": "Ark.",
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        8717826
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      "weight": 2,
      "year": 1974,
      "opinion_index": 0,
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        "/ark/257/0076-01"
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    {
      "cite": "107 S.W. 993",
      "category": "reporters:state_regional",
      "reporter": "S.W.",
      "year": 1908,
      "opinion_index": 0
    },
    {
      "cite": "85 Ark. 289",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1523381
      ],
      "year": 1908,
      "opinion_index": 0,
      "case_paths": [
        "/ark/85/0289-01"
      ]
    },
    {
      "cite": "83 S.W. 2d 554",
      "category": "reporters:state_regional",
      "reporter": "S.W.2d",
      "year": 1935,
      "opinion_index": 0
    },
    {
      "cite": "191 Ark. 58",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1418619
      ],
      "year": 1935,
      "opinion_index": 0,
      "case_paths": [
        "/ark/191/0058-01"
      ]
    },
    {
      "cite": "263 Ark. 813",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1672644
      ],
      "weight": 2,
      "year": 1978,
      "opinion_index": 0,
      "case_paths": [
        "/ark/263/0813-01"
      ]
    }
  ],
  "analysis": {
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    "char_count": 8888,
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  "last_updated": "2023-07-14T18:31:48.026206+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "We agree. Harris, C.J., and Fogleman and Holt, JJ.",
      "Purtle, J., dissents."
    ],
    "parties": [
      "John E. BOX, Jr. and Ruth M. BOX v. R. F. DUDECK"
    ],
    "opinions": [
      {
        "text": "Darrell Hickman, Justice.\nJohn E. Box, Jr., one of the appellants, agreed in writing to sell his interest in 89 acres of land to R. F. Dudeck, appellee, for $90,000.00. The land was held in Box\u2019s name only. Ruth M. Box, John\u2019s wife, refused to sign the agreement. Dudeck decided to seek specific performance of the agreement, satisfied to take the land subject to Mrs. Box\u2019s inchoate dower interest.\nThe unusual, but not unprecedented, thing about this case is that specific performance of a land sale agreement was ordered even though a wife refused to sign the agreement.\nThe Washington County Chancery Court found that Box had agreed to sell his interest, ordered specific performance, and found the value of the inchoate dower interest to be $20,826.00. Dudeck was ordered to pay the agreed price, less an abatement of the dower interest. A lien was imposed on the land for the value of the dower interest subject to three conditions: Should John E. Box, Jr. predecease his wife, Ruth, the lien would be void; if Box is alive seven years after the deed is recorded, the abated amount will be payable to Box; if Ruth relinquishes her dower interest within seven years to Dudeck, the abated amount is payable to her.\nThe Boxes appeal alleging two errors, the second encompassing three arguments.\nFirst, it is argued the agreement was conditioned on the wife signing the agreement and the chancellor erred in finding otherwise.\nThis issue is purely a question of credibility of the witnesses. Only two people actually knew what Box agreed to \u2014 he and the real estate broker, Phyllis Enos. Dudeck never talked to the Boxes and it is undisputed that Ruth Box never $aid she would, nor did she sign the agreement.\nMs. Enos, a Fayetteville real estate broker, testified she was shown the property by John E. Box a month before the sale. On April 5, 1975, Dudeck signed an offer to buy the property for $90,000.00, $15,000.00 down, the balance to be paid over ten years. Enos took the offer to Box who, after consulting with his attorney and accountant, added some provisions. An amended offer with these conditions was prepared and on the same day both Dudeck and Box signed it.\nAccording to Ms. Enos, she asked Box if his wife\u2019s signature should not be obtained. Box replied it would not be necessary. She said she assumed Box was simply speaking for both of them. However, since it is appropriate to obtain a wife\u2019s signature, she called the next day or so to see if Ruth Box had signed or would sign the agreement. She said that Box told her his wife would not sign but that he still wanted to go through with the transaction. She said she then called Dudeck who decided that he still wanted to go through with the agreement.\nMr. Box essentially denied Ms. Enos\u2019 statement about agreeing to sell without his wife\u2019s consent. He admits he signed the agreement and had provisions added as Ms. Enos testified. He stated the sole reason he refused to sell was because his wife would not sign the agreement.\nBox testified that when Ms. Enos asked him if there would be any trouble getting the signature of Ruth Box, he said he did not think so. He said that Ms. Enos replied, \u201cI will take care of it.\u201d He testified that Ms. Enos did not call him in a day or so about Ruth\u2019s signature but instead talked to his wife. He said his wife told Ms. Enos she would not sign. He flatly denied he ever told Ms. Enos he wanted to sell anyway.\nMr. Box, a contractor who holds a real estate broker\u2019s license, admitted that in a pre-trial deposition he said Ms. Enos never asked about his wife\u2019s signature at the time he signed the agreement. He admitted that this testimony was inconsistent with his trial testimony. Also, Box testified that he did not know that the property was held in his name only at the time he signed the agreement. He said that he and his wife had originally held the land as tenants by the entirety but as a result of some estate planning upon advice by an attorney several years before, Mrs. Box conveyed her interest to him. He said he had simply forgotten about the deed.\nMr. Dudeck testified simply that he was willing to go through with the transaction without a release of the dower interest.\nRuth Box testified that she first saw the offer and acceptance in her lawyer\u2019s office. She essentially corroborated her husband\u2019s statement that Ms. Enos called their home and she informed Ms. Enos she was not ready to sign the agreement. She remembered discussing with her husband the fact that a man named Dudeck wanted to buy the place for $90,000.00. She did not think it was enough. She did not recall her husband ever telling her that he had signed the agreement.\nThe question here is one of fact: Did John Box unconditionally agree to sell his interest in the land? He signed the agreement, adding conditions, saw the $15,000.00 check deposited by Dudeck with Ms. Enos, and, according to Ms. Enos, said he wanted to sell it regardless of his wife\u2019s actions. Mr. Box testified to the contrary. It was this conflict that the court resolved in favor of the appellee. Where matters of credibility are concerned, findings of those in a position to observe the witnesses, (in this case, the chancellor) are given great weight. On appeal, we only reverse such a judgment if it is clearly against the preponderance of the evidence. Digby v. Digby, 263 Ark. 813, 567 S.W. 2d 290 (1978). We cannot say in this case that the finding of the court regarding the agreement was wrong.\nWhile specific performance in such a case is unusual, it is not unprecedented. Dudeck was satisfied to proceed with the transaction without the release of the dower interest. That was an option he had. Reed v. Phillips, 191 Ark. 58, 83 S.W. 2d 554 (1935). In the alternative, he could have elected to sue for damages for failure to deliver a merchantable title. Vaughan v. Butterfield, 85 Ark. 289, 107 S.W. 993 (1908).\nThe second allegation of error relates to the terms of the dower interest and the abatement order. The trial court asked for briefs and requested arguments as to the value of the dower interest. The appellants argued to the trial court, and to us on appeal, that the value of the dower interest is $10,-597.44. This argument is based on an interpretation of Ark. Stat. Ann. \u00a7 50-701, et sequentes (Repl. 1971). This figure was arrived at by reducing the purchase price of $90,000.00 to one-third, or $30,000.00, which appellants contend is the value of the fee interest to which the wife\u2019s dower interest would attach. Next, using tables in Ark. Stat. Ann. \u00a7 50-705, they determine the annuity to be 10.7792 using Mr. Box\u2019s age of 52 years, together with the legal interest rate of 6%. This figure, multiplied by an annual income figure of $1,800.00 ($30,000.00 times 6%) produces a figure of $19,402.56. It is argued that this is the value of Mr. Box\u2019s interest in one-third of the land that is subject to the dower interest. $19,402.56 subtracted from $30,000.00 equals $10,597.44.\nThe chancellor, in a well reasoned memorandum, pointed out that this argument was erroneous for two reasons: First, the dower was inchoate, not vested; second, Mr. Box\u2019s age was used rather than his wife\u2019s. Using the table as a reference, the court concluded that a more reasonable value of the interest would be $20,826.00.\nWhile the value determined by the court may not be exactly precise, it was the duty of the appellants to affirmatively show that it was erroneous. Peoples Protective Life Ins. Co. v. Smith, 257 Ark. 76, 514 S.W. 2d 400 (1974). The appellants have failed to do that.\nNext, it is argued that the wife\u2019s dower interest should bear interest at the contract rate until paid under Ark. Stat. Ann. \u00a7 29-124 (Repl. 1962). This argument is based on the premise that this was a judgment and that all judgments bear interest. The appellee correctly points out that this abatement of the purchase price was not a judgment. The dower interest has not been barred or relinquished. The full amount abated is payable to Mrs. Box at any time in cash at her option.\nFinally, it is argued that the court was wrong in one of the conditions it imposed on the abatement, that is, that should Mrs. Box predecease Mr. Box within the seven year period the money should be paid to Mr. Box rather than result in a reduction in the original purchase price. Although this condition was not specifically included in the chancellor\u2019s decree, we agree with appellants. We think this omission was an oversight of the court and the order is so modified.\nAffirmed as modified.\nWe agree. Harris, C.J., and Fogleman and Holt, JJ.\nPurtle, J., dissents.",
        "type": "majority",
        "author": "Darrell Hickman, Justice."
      }
    ],
    "attorneys": [
      "Ball & Mourton, for appellants.",
      "Wade, McAllister, Wade & Burke, P.A., by: Rudy Moore, Jr., for appellee."
    ],
    "corrections": "",
    "head_matter": "John E. BOX, Jr. and Ruth M. BOX v. R. F. DUDECK\n78-265\n578 S.W. 2d 567\nOpinion delivered February 26, 1979\n(Division II)\n[Rehearing denied April 23, 1979.]\nBall & Mourton, for appellants.\nWade, McAllister, Wade & Burke, P.A., by: Rudy Moore, Jr., for appellee."
  },
  "file_name": "0165-01",
  "first_page_order": 187,
  "last_page_order": 192
}