Fleming v. Southland Life Ins. Co.

• Decision Date: 17 April 1978
• Docket Number: No. 77-109,77-109
• Citation: 263 Ark. 272,564 S.W.2d 216
• Court: Arkansas Supreme Court
• Parties: Richard L. FLEMING and Glenda F. Fleming, Appellants, v. SOUTHLAND LIFE INSURANCE COMPANY, John F. Mangrum, Trustee, et al., Appellees.

Page 216

564 S.W.2d 216

263 Ark. 272

Richard L. FLEMING and Glenda F. Fleming, Appellants, v. SOUTHLAND LIFE INSURANCE COMPANY, John F. Mangrum, Trustee et al., Appellees.

No. 77-109.

Supreme Court of Arkansas, In Banc.

April 17, 1978.

McMillan, Turner & McCorkle by H. W. McMillan, Arkadelphia, for appellants.

Bridges, Young, Matthews & Davis, Pine Bluff, Thomas E. Sparks, Fordyce, Lookadoo, Gooch & Ashby, Arkadelphia, Lindsey J. Fairley, West Memphis, for appellees.

FRANK J. HUCKABA, Special Chief Justice.

Richard L. and Glenda F. Fleming owned several hundred acres of land in Dallas County, which were mortgaged to Pine Bluff Production Credit Association and Southland Life Insurance Company. Flemings defaulted, the mortgage holders sued, and a consent judgment and foreclosure Decree was entered on July 8, 1976. After the property was sold at foreclosure sale, but before the sale was confirmed, Flemings sought to satisfy the judgment and redeem the land. The Chancellor would not permit them to do so, confirmed the sale, and this Court must answer the question: How long did the Flemings have to pay the judgment and redeem their land? The Mortgages contained the usual waivers of the Statutory right of Redemption, and we consider only what equity of redemption the Flemings had.

A further recital of the facts, all of which occurred in 1976, is necessary. On September 15, 68 days after the foreclosure Decree, the lands were sold at public auction. Elbert L. Milton, one of the appellees, was high bidder. On September 29, Flemings petitioned the Trial Court to set the sale aside, alleging certain irregularities in the sale, and that if resold the property would sell for more. The Trial Court, on October 4, conducted a hearing on whether the sale should be confirmed, but deferred any decision giving attorneys time to brief the issue. Four days later, Flemings made a tender of money into the Court's registry, and filed their Petition for Permission to Satisfy Judgment and Redeem Land from Sale. Actually, Glenn D. Lane, an apparent buyer from Flemings, made most if not all of the tender; and took and recorded a deed from Flemings while the motions were pending. On November 1, 1976, the Court confirmed the sale, and Flemings have appealed.

To reach our difficult decision in this case we must interpret the significance of the following paragraphs in the Court's Decree of Foreclosure:

"(F) If the foregoing Judgments are not satisfied within 20 days, the Commissioner of this Court hereinafter named shall . . . sell to the highest bidder . . . all of the described property covered by the mortgages of Southland Life Insurance Company and of Pine Bluff Production Credit Assn."

"(M) Upon confirmation of said sale all rights of redemption and any and all of the rights, title, interest and claim of the defendants and each of them in and to all of the above described property shall be forever barred."

Appellants urge that the Court intended by the language in the second quoted paragraph to give them a right to pay the judgment and redeem the land after the judicial sale, at any time prior to confirmation. The Chancellor rejected this argument, and we agree with him.

It is significant that the Chancellor's Decree provided that "If the foregoing Judgments are not satisfied within 20 days, the Commissioner . . . shall . . . sell to the highest bidder . . . ". Similar language in the case of Bentley v. Parker, 257 Ark. 749, 525 S.W.2d 460 (1975), was construed to mean that the mortgagor was given a certain number of days (10 in that case) from the date of foreclosure decree within which to redeem the property. The only logical or reasonable construction of this language, and its purpose, was to permit the mortgagor a period of 20 days after the decree to redeem the property.

We find that Paragraph (M) in the Decree providing that "Upon confirmation of said sale all rights of redemption and any and all rights, title, interest and claim of the defendants and each of them in and to all of the above-described properties shall be forever barred", was a recital of the legal effect of confirmation and was not intended to extend the privilege of redemption beyond the 20-day period. If it was intended to extend redemption rights to any time short of confirmation, then the 20-day provision in the Chancellor's decree was meaningless; and we do not feel he intended a meaningless provision.

It is settled law that a judicial sale is not complete until confirmation. If, for example, confirmation of the sale is refused for a legitimate reason such as fraud, irregularity, or gross inadequacy in the sale price, it certainly would be within Chancellor's discretion to permit redemption prior to resale. Thus, while the possibility of redemption is not forever barred until confirmation, this does not mean that there is an absolute right to redeem at any time prior to confirmation.

The Trial Court is vested with sound discretion with respect to confirmation of judicial sales and cannot capriciously set aside a sale to permit redemption. The Court also has the responsibility to protect the integrity of judicial sales to...