Hudgins v. Schultice

• Decision Date: 05 April 1915
• Docket Number: (No. 296.)
• Citation: 175 S.W. 526
• Parties: HUDGINS v. SCHULTICE et al.
• Court: Arkansas Supreme Court

Page 526

175 S.W. 526

HUDGINS v. SCHULTICE et al.

(No. 296.)

Supreme Court of Arkansas.

April 5, 1915.

Appeal from Garland Chancery Court; Jethro P. Henderson, Chancellor.

Suit by Lottie Schultice and others against J. W. Hudgins. From decree for plaintiffs, defendant appeals, and plaintiff Lottie Schultice cross-appeals. Affirmed.

This suit was brought by appellees against appellant to redeem certain lots in the city of Hot Springs from the appellant, the purchaser, at the sale foreclosing a lien for improvement district taxes due thereon.

Lottie Schultice had formerly been collector of improvement district No. 24, in which the lots are situated, and was on October 16, 1911, at the time of the bringing of the suit to foreclose the lien and collect the taxes, the sole owner. On March 13, 1912, she executed a mortgage to Peter Valle, which still remains unsatisfied, and sold part of lot 14 to appellee J. N. Searcy on October 6, 1912, and on the same day executed a mortgage to Burgauer. Suit to foreclose the lien was commenced October 16, 1911, and the summons issued and the return thereon showed it was duly served by the sheriff on Lottie Schultice, and the decree of foreclosure recites:

"That due service of process by summons against each of said defendants, and all of them, for the time and in the manner prescribed by law, has been had in this cause, by service of said summons upon the defendants, * * * and that defendant Lottie Schultice is the owner of lots 14 and 15."

The sale was made under the decree on January 25, 1913, at which J. W. Hudgins became the purchaser of said lots, and on February 2, 1914, a commissioner's deed conveying same to him was executed and approved.

No summons was served upon or notice given to Lottie Schultice's said grantees or mortgagees, nor was any lis pendens notice filed. The chancellor found that the sale was good as to Lottie Schultice, the owner of the property, at the time the suit to foreclose the lien was commenced, and that she was not entitled to redeem after the year allowed had expired, but that her grantees and mortgagees were bona fine purchasers, had no notice of the proceedings and were entitled to redeem from the purchaser at the foreclosure sale, and decreed accordingly, and from this decree this appeal is prosecuted.

Davies & Ledgerwood and B. H. Randolph, all of Hot Springs, for appellant. C. Floyd Huff, of Hot Springs, for cross-appellant. Martin, Wootton & Martin, of Hot Springs, for appellee Searcy. Rector & Sawyer, of Hot Springs, for appellee Valle.

KIRBY, J. (after stating the facts as above).

The sole question for decision is whether the purchaser, at the sale for the foreclosure of the lien for the improvement taxes after the year allowed for redemption had expired, can hold the property against grantees and mortgagees, bona fide purchasers to whom conveyances were made by defendant after the suit for foreclosure was commenced, and no lis pendens notice filed as required by section 5149, Kirby's Digest. Appellant insists that, notwithstanding no lis pendens notice was filed, and said purchasers and mortgagees had no actual notice of the pendency of the suit to foreclose the lien and collect the taxes, that they are not bona fide purchasers, and are concluded by the judgment against their grantor, Lottie Schultice. His contention is that the transaction is governed by the law relating to the sale of lands for the collection of taxes, and not under the law governing judicial sales.

If an individual had been proceeding against Lottie Schultice, the grantor of the other appellees after suit commenced to enforce a lien against the lands, and had filed no lis pendens notice, and she had conveyed the lands after suit begun to a bona...