Free v. Harris

• Decision Date: 21 April 1930
• Docket Number: 294
• Citation: 27 S.W.2d 510,181 Ark. 644
• Parties: FREE v. HARRIS
• Court: Arkansas Supreme Court

27 S.W.2d 510

181 Ark. 644

FREE v. HARRIS

No. 294

Supreme Court of Arkansas

April 21, 1930

Appeal from Lincoln Chancery Court; H. R. Lucas, Chancellor reversed.

Decree reversed, and cause remanded.

E. W Brockman, for appellant.

R. W Wilson, for appellees.

MCHANEY J. HUMPHREYS and MEHAFFY, JJ., dissent.

OPINION

MCHANEY, J.

Appellees are the widow and heirs at law of W. H. Harris, now deceased. In January, 1927, W. H. Harris and Julia Harris, his wife, executed and delivered a note, secured by deed of trust on 220 acres of land, to O. P. Schnyder for an indebtedness amounting to $ 4,525.30 at the date of foreclosure, June 17, 1929. The deed of trust contained provisions by which dower and homestead were released, and waived the right of appraisement and redemption under the laws of this State. In December, 1927, Will Harris died intestate, leaving surviving him the appellees, the widow and five children, four of whom are minors. Julia was appointed administratrix of said estate.

The indebtedness represented by the note and deed of trust not having been paid, foreclosure proceedings were begun in November, 1928, in which the widow and all the heirs were made defendants. Guardian ad litem was appointed for the minor defendants, who filed answer for them in January, 1929. The widow made no defense. On June 17, 1929, the complaint was amended so as to make the administratrix a party, and on the same day she filed an answer admitting the plaintiff's lien, and that it was prior to her claim as administratrix, and consenting that decree might be taken at any time. On the same day, June 17, decree was entered giving judgment against Julia Harris in the sum of $ 4,525.30 and costs, which was declared a first lien on the 220 acres of land. A sale of the land was ordered, a commissioner being appointed for this purpose, if the judgment should not be paid in five days, after advertisement, and upon terms fixed by law. A sale was had pursuant to the terms of said decree on July 31, 1929, and appellant, Free, being the highest bidder, became the purchaser on a bid of $ 7,000. Several other bidders were present, including Mr. C. H. Holthoff, who bid up to $ 6,600 for the land. The concluding clause in the decree is, "That the court does retain jurisdiction of this cause for the purpose of making such other and further orders as may be necessary for the protection of the rights of the parties hereto, and such others as may become proper parties."

Thereafter, on September 24, 1929, nearly two months after the sale to appellant, but before report of sale and confirmation, Julia Harris, as administratrix of said estate, filed "motion to set aside commissioner's sale and to permit redemption," in which it is alleged that the land was sold for an inadequate price, being worth $ 12,500; that only the homestead and dower interest of Julia Harris were sold; that she, as administratrix, was able, ready and willing to pay Schnyder his judgment, interest and all court costs, which amount she tendered in open court. She therefore prayed that the sale be set aside, confirmation be denied, and that she, as administratrix, be permitted to redeem. The court granted the prayer of this motion, and the purchaser at the sale has appealed from this latter decree.

It will be seen that the only ground alleged for setting aside the sale and refusing confirmation was the inadequacy of the price for which the sale was made. There is no allegation of fraud or other inequitable conduct attendant upon the sale and the court specially found from the evidence adduced on the motion that "there was no fraud or unfairness in the conduct of the sale," which finding is supported by all the evidence. Mere inadequacy of consideration, however gross, unaccompanied by fraud, unfairness or other inequitable conduct in connection with the sale, is of itself insufficient to justify the court in setting the sale aside and refusing confirmation. Marten v. Jirkovsky, 174 Ark. 417, 295 S.W. 365; Alexander v. American Bldg. & Loan Assn., 180 Ark. 251, 21 S.W.2d 156, and cases cited in both. In Marten v. Jirkovsky, supra, this court quoted from George v. Norwood, 77 Ark. 216, 91 S.W. 557, 113 Am. St. Rep. 143, 7 Ann. Cas. 171, the following: "When a sale is made in all respects according to the terms of the decree, and neither fraud, mistake nor misrepresentation can be alleged against it, the faith of the court is pledged to ratify and perfect it. * * * There is a uniform current of decisions settling that official sales will not be opened on mere representations that more may be obtained for the property. This well known practice is in accord with the policy of our law respecting such sales, which are required to be made after advertisement sufficient to give publicity, by public outcry, to the highest bidder. It is of the greatest importance to encourage bidding by giving to every bidder the benefit of bids made in good faith and...