Cooper v. Ryan

• Decision Date: 12 November 1904
• Citation: 83 S.W. 328
• Parties: COOPER et al. v. RYAN et al.
• Court: Arkansas Supreme Court

83 S.W. 328

COOPER et al. v. RYAN et al.

Supreme Court of Arkansas.

November 12, 1904.

Appeal from Hot Spring Chancery Court; Leland Leatherman, Chancellor.

Proceedings between Francis R. Cooper and others and John H. Ryan and others. From a decree foreclosing a mortgage and from an order confirming the sale thereunder, plaintiffs appeal. Reversed.

Morris M. Cohn, for appellants. E. H. Vance, Jr., for appellee A. I. Roland.

WOOD, J.

This is an appeal from a decree foreclosing a mortgage and from an order of the court confirming the sale of the commissioner who was appointed to carry out the decree. The decree of foreclosure was rendered on January 17, 1901. The transcript was filed and appeal granted by the clerk of this court March 17, 1902, more than one year after the decree. It follows that the motion to dismiss the appeal from the decree of foreclosure should have been granted. Acts 1899, p. 111, c. 60; Spratlin v. Haller, 69 Ark. 281, 62 S. W. 904; Rankin v. Schofield, 70 Ark. 83, 66 S. W. 197.

The order of the court at its June term, 1901, confirming the sale made by the commissioner, was a final order, and from that the appeal was taken in time.

The appellants objected to the confirmation of the sale because the notice of sale described the property to be sold as "Lot 10 and the west half of lot 11 in block, in Keith's Addition to the town of Malvern," omitting to name the block in which the lots were situated. And appellants alleged that other blocks in Keith's Addition contained lots 11 and 12, and that the failure to name the particular block in which these lots were situated "was calculated to deter and mislead bidders, and to depreciate the value of the property, and prevent it from bringing a fair price to the prejudice of the petitioners." The purchaser at the sale, A. I. Roland, set up in answer to the exceptions to the report of the commissioner that he (Roland) was an innocent purchaser; that he had examined the record of foreclosure before purchasing, to see whether there were other incumbrances; that he knew nothing of any irregularity in the description alleged; that he had paid $340 to the commissioner for the land, and had paid taxes, insurance, etc. Appellants proved by the affidavits of various witnesses that the lots were worth from $600 to $1,000, and there was no proof to the contrary. There was a recital in the decree to the effect that the title was reserved until the sale was approved by the court and the purchase money was fully paid. Roland avers that he read the decree of foreclosure; hence he had actual knowledge of this provision. He did not pay the amount of his bid until the court had approved the report of the commissioner. An appeal was prayed for and granted by the court below from the order approving the commissioner's report. Roland paid the purchase money after this. He was therefore no stranger to the proceedings, and, having knowledge of the facts alleged to avoid the sale before the deed was executed and the purchase money paid, he was not an innocent purchaser. Byers v. Fowler, 12 Ark. 218, 44 Am. Dec. 271; Duncan v. Johnson, 13 Ark. 190; Pearce v. Foreman, 29 Ark. 563; Wilson v. Slaughter, 53 Ark. 137, 13 S. W. 515. The doctrine of innocent purchaser does not apply to a case like this. It is not the case of a stranger at execution sale being protected from secret infirmities. Carden v. Lane, 48 Ark. 216, 2 S. W. 709, 3 Am. St. Rep. 228. The cases cited by appellees on this head are not in point. The doctrine announced in Wells v. Rice, 34 Ark. 346, Neal v. Andrews, 53 Ark. 445, 14 S. W. 646, and ...