Bank of Pine Bluff v. Levi

• Decision Date: 05 April 1909
• Citation: 118 S.W. 250,90 Ark. 166
• Parties: BANK OF PINE BLUFF v. LEVI
• Court: Arkansas Supreme Court

118 S.W. 250

90 Ark. 166

BANK OF PINE BLUFF v. LEVI

Supreme Court of Arkansas

April 5, 1909

Appeal from Jefferson Chancery Court; John M. Elliott, Chancellor affirmed.

White & Altheimer, for appellants.

While in the absence of fraud, unfairness or other wrongful act on the part of the purchaser or those conducting the sale, or occurrence of special circumstances affording ground for equitable relief, mere inadequacy of price will not justify an appellate court in interfering with the sale, yet, if such facts are established and the price is inadequate, it is justified in setting the sale aside. 65 Ark. 152. It is warranted in this case:

1. bye the conduct of the administrator in not submitting to the court the fact that his attorney caused suit to be brought by Arnold, and asking leave to employ a disinterested attorney to represent the estate; also in failing to notify creditors of what had transpired. 75 Ark 188. In leaving everything pertaining to his duties as administrator to the attorney, the latter became in effect the administrator. As attorney he was bound in the same strictness as the administrator. 33 Ark. 586; 30 Ark. 48.

2. By the conduct of the attorney, whose duty it was to see that the property brought the highest price obtainable in acting for and advising with the purchasers. 75 Ark. 188.

3. By the conduct of the purchasers in employing to buy the property for them the one attorney who should have been interested in seeing that the property brought the highest price. 34 Ark. 464. And by the act of that attorney in misleading the creditors.

4. The lots, though 360 feet apart, were sold jointly. This was erroneous. Rorer on Jud. Sales, § 563. The notices did not fix a time of day for the sale, even omitting to state that it would be within judicial hours. It did not give correct style of the case. Copy of the advertisement was not served as required by law. Kirby's Dig. § 4923.

Irving Reinberger, for appellee.

The testimony does not sustain the contention of appellants as to misconduct of the administrator, attorney or purchaser. There is no duty resting upon a court to set aside a sale of lands for the purpose of allowing an interested party to advance the bid of the purchaser, where the sale has been made in accordance with the decree directing it, the property has brought its market value, and there is no fraud, unfairness or other wrong act injurious to the sale. 65 Ark. 154. It will not before confirmation set aside a sale for mere inadequacy of price, nor will it after confirmation set the sale aside, even though the price was grossly inadequate except for fraud. 77 Ark. 216, and cases cited. Nor because the property was sold en masse. 12 Am. & Eng. Enc. of L. 236.

OPINION

FRAUENTHAL, J.

The appellants are a part of the creditors of the estate of Hanchi Bloom, deceased, and they instituted this suit, by an original bill in equity, to set aside an order of the Jefferson Chancery Court confirming a sale of land made under a decree of foreclosure of a mortgage in that court in a cause wherein Eugene C. Arnold et al. were plaintiffs and Sidney Weil, administrator of said estate et al. were defendants. Hanchi Bloom departed this life intestate on November 2, 1905, and left surviving her two children, the appellees, Minnie Levi and Edna Straus. The other appellee, Sidney Weil, was appointed administrator of her estate.

Ou June 14, 1905, Hanchi Bloom executed a mortgage upon two lots in the city of Pine Bluff, Ark., to Eugene C. Arnold in order to secure the payment of a note for $ 3000 and interest executed by her to Rufus Arnold, trustee. After her death, Eugene C. Arnold and Rufus Arnold, trustee, as plaintiffs instituted suit in the Jefferson Chancery Court against Sidney Weil as administrator of said estate and Minnie Levi and Edna Straus as heirs of Hanchi. Bloom, deceased, for the foreclosure of said mortgage. A decree was duly entered in their favor for the amount of said note and subjecting said land to the payment thereof; and to that end decreeing the sale of said lots. Edward Brewster was appointed commissioner to make the sale, and after due advisement by published notice as prescribed by law he sold the lots to said Minnie Levi and Edna Straus for $ 3500 on December 27, 1906; and on the same day filed his written report of the sale in the said chancery court. On December 28, 1906, the said chancery court by decree confirmed said sale, and said decree amongst other things states:

"And it further appearing to the satisfaction of the court that said sum is a fair consideration for said property, the said report is in all things approved, and the sale herein is confirmed." Thereafter, in pursuance of said sale, the commissioner executed a deed for said lots to said Minnie Levi and Edna Straus, which was approved by and duly acknowledged in said chancery court.

On January 25, 1907, this suit was instituted to set aside said decree confirming said sale, for the reasons, as alleged in the complaint, that the price is inadequate, and the sale was not conducted in a fair manner; that there was collusion between the seller and buyer and bids were stifled; and also because there were certain irregularities in the making of said sale. Complainants offered to refund the full amount of the bid, and asked that the deed to the purchasers be cancelled, and a resale of the land be made.

The appellees denied all the material allegations of the complaint in their respective answers. Upon a hearing of the cause upon the pleadings and testimony, the chancery court dismissed the complaint for the want of equity; and from that decree this appeal is prosecuted.

The cause that is now presented on appeal to this court is not an appeal from the order or decree of the chancery, court confirming the sale of the land; but it is an effort by an original proceeding to set aside that decree. The order confirming a judicial sale is in the nature of a final judgment or decree, and has the same force and effect as any other final decree or judgment. In the original suit wherein the decree of sale is made there is some measure of discretion, both as to the manner and conditions of a sale, as well as to ordering or refusing a resale. The chancellor will always make such provisions as to notice and other conditions as will protect the rights of all interested; and after the sale has been made he will before confirmation see that no wrong has been accomplished in and by the manner in which it was conducted. But the purpose of the law is that such sales shall be final; and to insure reliance upon such sales it is essential that no sale be set aside for reasons that are not cogent, or on account of matters which ought to have been attended to by the complaining parties before the sale. And so it has been held that, even before the confirmation of sale, a party is not entitled to have the sale set aside upon an offer of a large advance upon the purchaser's bid, if the land brought its market value. Colonial & U.S. Mortgage Co. v. Sweet, 65 Ark. 152, 45 S.W. 60; Pewabic Mining Co. v. Mason, 145 U.S. 349, 36 L.Ed. 732, 12 S.Ct. 887.

Before the confirmation of the commissioner's sale, irregularities may be shown, that the sale was not made in accordance with the provisions of the decree; or any misconduct or unfairness may be shown, in order to set aside such sale. And upon all these matters the chancery court passes when it makes its decree of confirmation. And from such order or decree of confirmation an appeal lies. Rorer on Judicial Sales, § 132.

But after a confirmation of the sale has been made by order of the court all defects and irregularities in the conduct of the sale are cured; and every presumption will be indulged in favor of its fairness and regularity. Waldo v. Thweatt, 64 Ark. 126, 40 S.W. 782; Du Hadaway v. Driver, 75 Ark. 9; Culver Lumber & Mfg. Co. v. Culver, 81 Ark. 102, 99 S.W. 391; Updegraff v. Marked Tree Lumber Co., 83 Ark. 154, 103 S.W. 606.

Such a decree is in effect the judgment of a superior court which may be set aside on appeal, but the validity of which cannot be attacked except on account of fraud. But the fraud which entitles a party to impeach a judgment must be a fraud extrinsic of the...