Fulbright v. Morton

• Decision Date: 17 December 1917
• Docket Number: 44
• Citation: 199 S.W. 542,131 Ark. 492
• Parties: FULBRIGHT v. MORTON, SHERIFF
• Court: Arkansas Supreme Court

199 S.W. 542

131 Ark. 492

FULBRIGHT v. MORTON, SHERIFF

No. 44

Supreme Court of Arkansas

December 17, 1917

Appeal from Washington Circuit Court; J. S. Maples, Judge; affirmed.

Judgment affirmed.

O. P McDonald and B. R. Davidson, for appellant.

1. There was no personal decree against Stuckey and hence the ven ex was irregular and there was no sale. A personal judgment was withheld until after the sale of the pledged stock. The decree should be construed so as to give effect to all of its language, according to its plain obvious and common sense. 9 Ark. 270; 24 Id. 286; Goolsby v Fulbright, ms. op.; 46 Iowa 49; 24 S.E. 114; 4 Munf. 262.

2. The sale was never perfected. The law was not complied with. The sale should have been for cash. Kirby's Digest §§ 3281, 3279.

The officer demanded a note with 8 per cent. interest. The legal rate is 6 per cent. No certificate of purchase was issued or tendered. There was no sale. 15 Ark. 611-615.

3. The statute is highly penal and the sheriff must strictly comply with the law. The property should have been re-offered for sale. 14 Ark. 120-121; Kirby's Digest, § 3283. The word "may" is mandatory. Freeman on Ex., § 301; 15 Ark. 611; 14 Id. 1, 114-120; 4 Wall. 435; 113 F. 232; 67 N.C. 261; 92 Ind. 514; 7 Ga. 167; 78 Ala. 258; 20 P. 629; 85 Ark. 232; 77 Id. 417; etc.

A statute is never to be regarded as directory merely when the act required, or the omission works injury or advantage to any one affected by it. 4 M. Law 213; 5 Mich. 151; 19 Barb. 558; Black on Tax Titles 305-311; 30 Ark. 612; 19 Wall. 238; 22 Id. 98; 90 F. 622.

4. The sale was within the statute of frauds. Kirby's Digest, § 3279; 20 Cyc. 235.

5. There never was a sale. 15 Ark. 615; 14 Id. 20; 21 Id. 231; 41 Am. Dec. 47.

6. It was error to refuse to permit appellant to prove that the agents of McIlroy Banking Co. instructed the sheriff to make sale under the execution as a lien superior to all others. 61 Ark. 66-70; 32 Id. 321.

H. L. Pearson, for appellee.

1. There was a personal judgment against Stuckey. 128 Ark. 76.

2. This suit was not brought under the statute but under our common law remedy. The word "may" is not mandatory but permissive. The statutory remedy is not exclusive. 30 Ark. 32; 101 P. 425; 79 S.W. 132; 122 N.Y. 1037; 35 Am. Dec. 575; 7 A. & E. Ann. Cas. 1069; 25 A. & E. Enc. L. (2 Ed.) 840-772; Lewis Sutherland Stat. Const. (2 Ed.), Vol. 2, p. 720, 363; 35 Am. Dec. 575; 17 Cyc. 1259; 11 Am. Dec. 691; 65 Am. St. 339; 17 Cyc. 1259; 9 P. 613; 11 Minn. 200; etc. A purchaser can not withdraw his bid after the officer has accepted it. Freeman on Ex., § 300; 22 Am. Dec. 322; 43 Id. 528; 49 Iowa 296.

3. The case does not fall within the statute of frauds. 21 Ark. 231; 15 Id. 615; 25 A. & E. Enc. L. (2 Ed.) 838. The statute does not apply to judicial or execution sales. 26 Am. Dec. 254. But the return of the sheriff satisfies the statute. 11 Paige 231; 43 Am. Dec. 528; 22 Id. 322; Freeman on Ex., § 299; 25 A. & E. Enc. Law, (2 Ed.) 774, note 9; 14 Ark. 20; 15 Id. 615; 21 Id. 231; 5 Yerger 63; 26 Am. Dec. 254; 126 P. 66; 98 N.E. 380. See also, 64 Am. St. 725; 64 Id. 725; 46 So. 769; 126 Ga. 274.

4. The doctrine of caveat emptor applies to execution sales. Freeman on Ex., § 355; 25 Am. & E. Enc. L. 843, note 6; 17 Cyc. 1262-3; 31 Ark. 258; 10 Id. 211; 30 Id. 249; 31 Id. 252; 53 Ark. 137; 31 Id. 108; 54 Id. 457; 226 Pa. 552; 8 Ala. 153; 131 Cal. 681; 25 Am. St. 758; etc.

5. Mere irregularities do not vitiate a sale. 10 Ark. 541; 12 Id. 421; 19 Id. 297; 34 Id. 399; 17 Cyc. 1265, note 22. Demanding 8 per cent. interest was immaterial. It was a mistake. But appellant did not refuse on this ground. He should have tendered his bid with 6 per cent. interest.

6. No error in excluding the testimony that the McIlroy lien was superior to all others. 115 Ga. 53; Freeman on Ex., § 310; 17 Cyc. 1282-4; 14 Ark. 9.

McCULLOCH, C. J. HUMPHREYS, J., not participating.

OPINION

McCULLOCH, C. J.

The Arkansas National Bank, a banking corporation engaged in business at Fayetteville, Arkansas, appellant Fulbright being president and managing officer, sued W. L. Stuckey in the chancery court of Washington County, and a decree was rendered in its favor against Stuckey for recovery of a debt due on contract. The McIlroy Banking Company, another banking corporation, was made party defendant in the action for the purpose of compelling the latter to foreclose its lien on certain property pledged by Stuckey so that the surplus proceeds could be applied on the debt due from Stuckey to the Arkansas National Bank. Certain credits were allowed to Stuckey over the objections of the bank, and the decree in the bank's favor was for the balance of the debt after allowing those credits. Both of the parties, Stuckey and the Arkansas National Bank, appealed to this court and the decree was reversed on the appeal of the bank and the cause was remanded with directions to the chancery court to enter a decree in favor of the bank for an amount in excess of the amount of the original decree of that court. Arkansas National Bank v. Stuckey, 121 Ark. 302, 181 S.W. 913. After the rendition of the first decree in the chancery court, and while the case was pending here on appeal, the chancery court rendered a decree in favor of McIlroy Banking Company against Stuckey for the recovery of the amount of its debt and for foreclosure of the lien on Stuckey's property. The pledged property was sold in accordance with the decree and the amount of proceeds was credited, leaving a balance of $ 2,498.82 due McIlroy Banking Company on the personal decree in its favor against Stuckey. On the remand of the original cause to the chancery court the Arkansas National Bank insisted that the decree rendered in its favor in accordance with the directions of this court should be declared to be prior in point of time and superior to the decree in favor of McIlroy Banking Company as a lien on Stuckey's unincumbered property, but the court decided to the contrary and the Arkansas National Bank again appealed to this court, where it was decided that the prior lien of the first decree was not displaced by the remand of the cause with directions to enter another decree for the amount due. 128 Ark. 76. While the second appeal was pending in this court, McIlroy Banking Company sued out an execution on the decree against Stuckey for the balance due after crediting the proceeds of the pledged property and the sheriff levied the execution on a piece of real estate owned by Stuckey in the City of Fayetteville and sold the same on execution at public outcry to appellant, who was the highest bidder. The sum of $ 1,800 was the price bid by appellant.

After the property was knocked off to appellant by the selling officer he agreed to execute the next day a note for the purchase price in accordance with the terms of the sale, but when requested by the sheriff to do so the next day, he declined. Appellant based his refusal to make good his bid on the ground that he had made the bid upon faith of representations of an agent of the McIlroy Banking Company that the execution lien of that bank was a superior one and that he had since been advised that the lien of the Arkansas National Bank under its decree against Stuckey was superior. Appellee as sheriff tendered a certificate of purchase which was refused by appellant and at the expiration of the statutory term of credit allowed on such sales, appellee sued to recover the amount of the bid. Appellant defended in the court below on the ground stated above for his refusal to make good his bid, and also on the ground that the sheriff could not maintain an action on the bid without reselling the property in accordance with the statute, which provides that when a bidder at an execution sale "shall refuse to pay the amount bid for any property struck off to him the officer making the sale may again sell such property to the highest bidder, and if any loss shall be occasioned thereby, the officer may recover such loss by motion before any court or justice of the peace." Kirby's Digest, § 3283. Appellant also contended that the decree in favor of McIlroy Banking Company was not for a personal recovery against Stuckey, but only constituted an ascertainment of the amount due for enforcing a lien on the pledged property. There was a trial before a jury, but upon the evidence adduced the trial court directed a verdict against appellant and an appeal has been prosecuted from the judgment rendered. The decree upon which the execution was issued reads as follows, (omitting caption and formal recitals):

"It is therefore, by the court ordered, adjudged and decreed that the said McIlroy Banking Company do have and recover of and from the said W. L. Stuckey, the sum of $ 7,375.64, interest and all its costs in this action, and that if the judgment interest and costs be not paid and fully discharged within ten days from its date, the commissioner of this court is hereby ordered and directed to proceed to sell for cash at public sale at the west front door of the courthouse in the City of Fayetteville, Washington County, Arkansas, after advertising said sale for four weeks in a newspaper published in Washington County, Arkansas, all of said stock in the said White Lime Company so pledged and delivered by the said W. L. Stuckey to the said McIlroy Banking Company and if said stock should not sell for a sum sufficient to pay said judgment in favor of the said McIlroy Banking Company, that the said McIlroy Banking Company have personal judgment against the said W. L. Stuckey for the satisfaction thereof, and if said stock should sell for a sum in excess of the judgment herein rendered in favor of the said McIlroy Banking Company, interest and cost, then the...