Boyd v. Bradley
| Decision Date | 08 March 1965 |
| Docket Number | No. 5-3486,5-3486 |
| Citation | 239 Ark. 120,388 S.W.2d 107 |
| Parties | Ada BOYD and Mary Boyd, Appellants, v. Thel BRADLEY et al., Appellees. |
| Court | Arkansas Supreme Court |
John G. Moore, Morrilton, for appellants.
Ike Allen Laws, Jr., Russellville, for appellees.
This appeal stems from a partition suit between the heirs of Wilson R. Spreles, who died intestate, a citizen and resident of Pope County, Arkansas, the adminitted owner of the real estate herein involved; and this appeal from the Chancery Court is a companion case to Boyd v. Matthews, No. 3485, 388 S.W.2d 102, this day decided, which is an appeal from the Probate Court.
On October 10, 1963, Ethel Bradley and Esther Matthews filed this partition suit, alleging, inter alia:
'Tract #1: The S 1/2 of the S 1/4 of the NW 1/4, containing 40 acres and the North 19.87 acres of the NE 1/4 of the SW 1/4 all in Section 5, Township 7 North, Range 18 West, containing in all 59 acres, more or less.
'Tract #2: The N 1/2 of the NW 1/4 of Section 9, Township 7 North, Range 18 West, containing 80 acres more or less.
'Tract #3: The E 1/2 of the NW 1/4 of Section 11, Township 7 North, Range 18 West, containing 80 acres more or less. 1 * * *'
The complaint stated the interest of each of the parties, plaintiff and defendant, in the lands, and also that no person, other than the plaintiffs and defendants, was interested in the lands. Some fifteen parties were named defendants as co-tenants with the plaintiffs. Three of the defendants (Mary Boyd, Ada Boyd, and Steve Etheridge) filed an answer resisting the partition suit until there was a final settlement in the Probate Court of the estate of Wilson Sproles. This administration angle of the case is settled by our Opinion in Boyd v. Matthews, No. 3485, 388 S.W.2d 102, this day decided.
On June 13, 1964, after hearing the evidence, the Chancery Court entered a decree which (a) stated that all the heirs of Wilson Sproles were present or duly summoned in the cause; and (b) that the lands could not be divided in kind and the Commissioner should sell the lands after due notice, and then report his actions to the Court. On July 9, 1964, Ada Boyd gave notice of appeal from the said decree; but such appeal was never perfected within the time allowed (Ark.Stat.Ann. § 27-2127.1 [Repl.1962]) and no extension is shown in the record; so there is no valid appeal from the decree ordering partition and it is too late now for the appellants to attack that portion of the decree of June 13, 1964 which found that all of the heirs of Wilson Sproles were present or duly summoned.
The reference to Tract #1 at first appeared herein shows that there was a typographical error in that it said the S 1/2 of the S 1/4 of the NW 1/4. On July 10, 1964, the Chancery Court entered an order 2 correcting the description of Tract #1 to be S 1/2 of S 1/2 of NW 1/4.
On July 15, 1964, the Commissioner filed his report of sale which showed that on the 13th day of July, 1964, the sale had been conducted and that Mary Boyd became the purchaser of the three tracts as follows:
Tract #1 $ 5000.00
Tract #2 7600.00
Tract #3 2000.00
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Total $14,600.00
Ada Boyd filed exceptions 3 to the report of sale, and on August 6, 1964, the Court heard the report and the exceptions and denied the exceptions and approved the report of sale and ordered the deed delivered to Mary Boyd upon payment by her of her bid of $14,600.00. From this order denying her exceptions and approving the report of sale, Ada Boyd gave notice of appeal on September 4, 1964. The record was filed in this Court on October 6, 1964, so Ada Boyd's appeal from the order denying her exceptions and approving the report of sale is duly before us.
On August 18, 1964, Ethel Bradley et al. filed 'Motion for Judgment' wherein it was stated: (a) that Mary Boyd refused to pay the $14,600.00 for the lands purchased and had stopped payment on her check; and (b) that the land should be resold and judgment rendered against Mary Boyd for all expenses and losses on resale and such judgment should be a lien on Mary Boyd's interest in the partition. On September 2, 1964, the Court granted the motion for judgment and ordered a resale, 4 after hearing testimony. Although the record attorney for Ada Boyd and the present attorney for Mary Boyd was present at the hearing and cross-examined the witnesses, there was no notice of appeal from the order of September 2, 1964; and that is a most significant fact in this case.
On October 22, 1964, the Commissioner filed his report of sale, stating that in pursuance to the court order of September 2, 1964, the lands had been again offered for sale and that the highest and best bidder at such resale for all of the lands was Reece Allewine at a bid of $10,000.00. On October 30, 1964, Mary Boyd and Ada Boyd filed exceptions to that report of sale. These exceptions are:
'1. This cause is now pending on appeal in the Supreme Court, and no action thereon should be taken by this court.
On November 16, 1964, the Chancery Court overruled the exceptions to the report of sale and confirmed the deed to Reece Allewine, which deed was exhibited, acknowledged, approved, and delivered, and to the order of November 16, 1964, Mary Boyd and Ada Boyd gave notice of appeal; and a supplemental transcript was filed in this same cause in this Court by stipulation of the parties in December 1964. So the exceptions of October 30, 1964, as above copied, are before us on this appeal by supplemental record, as also are the exceptions filed by Mary Boyd and Ada Boyd on August 6, 1964. The appellants, Ada Boyd and Mary Boyd, have listed four points on this appeal, which are:
I.
The matter of the description regarding a portion of Tract #1 is entitled to first consideration. This is not a collateral attack, but is a direct attack. The complaint, and also the notice of the first sale 5 described the tract as 'S 1/2 S 1/4 NW 1/4 * * *'; but on July 10, 1964 (three days before the first sale of the property) the Court entered an order correcting the description to be 'S 1/2 S 1/2 NW 1/4. * * *' The evidence before us shows that the mistake in the description was called to the attention of all the bidders before the Commissioner conducted the sale. There were a number of bidders at the sale: the Commissioner testified that there were fifty-eight bids. In possession of full notice of the correction of the description before the sale, Mary Boyd bid $5000.00 for Tract #1 and filed no exceptions to the Commissioner's report of sale to her on any of the tracts, and allowed the sale to be approved and confirmed. It is true that Ada Boyd filed exceptions to the report of sale because of the matter of the description, but she did not show that...
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Vaughn v. Bates, CA 09–712.
...acknowledges that the circuit court may still correct the record to [Ark. App. 8]conform to what really occurred. See Boyd v. Bradley, 239 Ark. 120, 388 S.W.2d 107 (1965) (decreeing that all pleadings be changed to reflect the correct property description after noting that the rights of the......
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Doss v. Taylor
...over them, the pendency of the probate proceedings does not preclude the maintenance of a partition suit in chancery. Boyd v. Bradley, 239 Ark. 120, 388 S.W.2d 107. While the court there only mentions specifically that there was no claim that the lands were needed for payment of debts in tr......
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Owen v. Owen, 79-287
...of appellee and was an appealable order. Ark.Stat.Ann. § 27-2101 (Repl.1979) and Ark.Stat.Ann. § 62-2016 (Repl.1971). Boyd v. Bradley, 239 Ark. 120, 388 S.W.2d 107 (1965); Johnson v. Johnson, 243 Ark. 656, 421 S.W.2d 605 (1967); Smith v. Smith, 235 Ark. 932, 362 S.W.2d 719 (1962); and Watki......