Fullbright v. Morton

• Decision Date: 17 December 1917
• Docket Number: (No. 44.)
• Citation: 199 S.W. 542
• Parties: FULLBRIGHT v. MORTON, Sheriff.
• Court: Arkansas Supreme Court

199 S.W. 542

FULLBRIGHT v. MORTON, Sheriff.

(No. 44.)

Supreme Court of Arkansas.

December 17, 1917.

Appeal from Circuit Court, Washington County; Jos. S. Maples, Judge.

Action by Mack Morton, Sheriff, against Jay Fullbright. Defendant appeals. Affirmed.

O. P. McDonald and B. R. Davidson, both of Fayetteville, for appellant. H. L. Pearson, of Fayetteville, for appellee.

McCULLOCH, C. J.

The Arkansas National Bank, a banking corporation engaged in business at Fayetteville, Ark., appellant Fullbright 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. 193 S. W. 276. 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, an that he had since been advised that the lien of the Arkansas National Bank under its decree against Stuckey was superior.

Appellee, a sheriff, tendered a certificate of purchase which was refused by appellant, and appellee instituted this action against appellant at the expiration of the statutory term of credit allowed on such sales 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 10 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, Ark., after advertising said sale for four weeks in a newspaper published in Washington county, Ark., all of said stock in the said White Lime Company so pledged and delivered by...