Huffman v. Gaines

• Decision Date: 26 June 1886
• Parties: HUFFMAN v. GAINES
• Court: Arkansas Supreme Court

1 S.W. 100

47 Ark. 226

HUFFMAN v. GAINES

Supreme Court of Arkansas

June 26, 1886

APPEAL from Garland Circuit Court, Hon. J. B. WOOD, Circuit Judge.

Judgment affirmed.

John M Harrell for Appellant.

The court finds that the alleged sale under the judgment, for cash, was rendered valid by the acceptance by appellant of part of the proceeds. Mansf. Dig., sec. 3056; Ib., sec. 5171. All sales by order of court must be on credit. 27 Ark. 292. The court erred in directing the sale to be made for cash in hand. The sale should have been on a credit of not less than three months, nor more than six. 31 Ark. 236.

R. G Davies for Appellee.

The sale was made on a credit, but the purchaser elected to pay cash. Appellant waived his right to object, by receiving and retaining the purchase money.

OPINION

COCKRILL, C. J.

Huffman has appealed from a judgment in ejectment against him in favor of Mrs. Gaines, awarding her the possession and rents of a lot in the city of Hot Springs. Mrs. Gaines claimed to have acquired Huffman's title to the property, by conveyance from two sources, viz.: First, by a sheriff's execution deed, and, second, by a deed executed to her by a trustee, in pursuance of a purchase made by her at a public sale, had under a mortgage with power to sell on default of payment, executed by Huffman on the premises in question. No objection is made here against the trustee's deed, except upon facts which the court below, in the absence of a jury, upon competent evidence, specially found against the appellant on the trial, when the deed was sustained. But if the appellant could successfully attack this deed, what would it avail him while the sheriff's deed stands? For if either conveyance is good it is sufficient to sustain the judgment of recovery. The judgment against Huffman, upon which the execution issued, was a valid subsisting judgment of the circuit court of the county where the land lay, and the validity of the execution, and the levy under it, have not been questioned. The validity of the advertisement of sale by the sheriff is alone attacked. The premises were advertised to be sold for cash, but were, in fact, sold as the statute directs, upon a credit. R. G. Davies, the attorney for the plaintiff in execution, became the purchaser. He paid the amount of his bid at once to the sheriff, who satisfied the execution out of the proceeds, and several weeks thereafter tendered the residue to Huffman. He accepted the amount and executed the following receipt:

"Received of J. H. Nichols, sheriff, the sum of $ 417.40, being balance of money received from sheriff's sale of lot No. 8, block 85, due me; said sale being made to satisfy an execution dated May 28, 1883, in case of W. H. Gaines v. J. M. Huffman, execution No. 218, said sale being made on the 30th of June, 1883, and said property sold to R. G. Davies, as per return filed herewith. Hot Springs, July 28, 1883.

J. M. HUFFMAN."

The premises described are the same here sued for, and all the data as to the sale are correctly recited in the receipt. Huffman does not claim to have been misled or deceived in any manner, and has never offered to return the money received by him on the purchase.

The certificate of purchase which the sheriff executed to Davies was assigned to the plaintiff in this action, after Huffman accepted the purchase money. When the period of redemption expired, the deed relied upon was executed and delivered to her.

It is the established rule of this court, that the statute requiring notice of execution sales to be given, is directory merely, and that a mistake in, or even a failure to give notice, will not invalidate a sale to an innocent purchaser. Files v. Harbison, 29 Ark. 307, and cases cited. The rule operates also to protect the title of the purchaser against errors or irregularities in the proceedings, which do not render the writ a nullity. Where the attorney for the...