Jennings v. Carter

• Decision Date: 10 May 1890
• Citation: 13 S.W. 800,53 Ark. 242
• Parties: JENNINGS v. CARTER
• Court: Arkansas Supreme Court

13 S.W. 800

53 Ark. 242

JENNINGS v. CARTER

Supreme Court of Arkansas

May 10, 1890

APPEAL from Washington Circuit Court in Chancery, J. M. PITTMAN Judge.

Jennings brought ejectment against Carter to recover a certain tract of land, being Carter's homestead and situated a mile and a half from Fayetteville. The testimony showed that there were three judgments against Carter, one in favor of Rudolph another in favor of Vernon & Skillern and a third in favor of Jennings. In January, 1887, West, attorney for Rudolph during Carter's temporary absence from home and without his knowledge, had his homestead levied upon under execution to satisfy Rudolph's judgment. Under West's direction the sale was advertised in a paper published at Springfield a small town in the county ten miles distant from Fayetteville, the paper having little or no circulation in Fayetteville, although there were two or three newspapers published in the latter place. No printed notice of the sale was posted at Carter's residence, but, under West's directions, one was posted on a fence-rail on Carter's fence some distance therefrom. West bought in the land for Mac Devin. During the same month executions on the other two judgments were procured. Under the directions of the attorney for the execution plaintiffs, advertisement was made in the Springfield paper, and the only notice posted on the premises was posted on a haw tree between a quarter and a half a mile from Carter's residence. In explaining this, the sheriff said: "My object in putting up the notice where I did was to save distance and the unpleasantness of having to post the sale of land where all the family can see me." Jennings purchased the land under his execution, bidding the amount of his judgment. Vernon & Skillern purchased under their judgment, likewise bidding the amount of their judgment. Subsequently Jennings purchased the interests of Devin and Vernon & Skillern, taking deeds from them and agreeing to pay for the land in case of recovery. Defendant knew nothing of either levy or sale, until the sales of his homestead had been made.

Defendant filed an answer averring that the execution sales were fraudulent, and a cross-bill asking that the cause be transferred to equity and the various deeds to plaintiff cancelled. The cause was so transferred, and the deeds to plaintiff cancelled.

Judgment affirmed.

B. R. Davidson and L. Gregg for appellant.

1. The Rudolph debt was contracted under the constitution of 1868, and Carter's exemptions were only such as existed under the constitution of 1868. 42 Ark. 385; 15 Wall, 610; Thomps. H. & Ex., sec. 10; 28 Ark. 488. Under the law a debtor must schedule or lose his homestead. 28 Ark. 488; 47 Ark. 400. The act of 1887 does not apply, as it is not retroactive. Acts 1887, p. 9; 40 Ark. 427; 15 Am. Dec., 242, note 248.

2. No fraud or collusion is proven. The law was strictly complied with. Wade on Notice, sec. 1086; Murfree on Sheriffs, sec. 668; 10 Ark. 545.

3. If the sheriff failed to comply with the law, his remedy was against the sheriff. Herman on Ex., sec. 342; 22 Ark. 19; 14 Ark. 9.

4. Devin was an innocent purchaser at a sale under a regular judgment and execution without any knowledge of any irregularity, and his title passed to appellant untainted with fraud. Freeman on Judg., secs. 109-110; Herman on Ex., sec. 342; 22 Ark. 19; 14 Ark. 9; 10 Ark. 541.

J. D. Walker for appellee.

1. It was not essential for Carter to claim his homestead before sale, by schedule. Norris v. Kidd, 28 Ark. 488, is outweighed by other and better decisions. 7 Mich. 488; 8 Mich. 50; 20 Mich. 79; 11 Mich. 358; Thomps. on Ex., sec. 652; 20 Ga. 200; 22 Ga. 165; 21 Ill. 105; 1 Humph., 390; 54 Ind. 509; 17 Neb. 620.

2. The failure to schedule was not his voluntary act or omission nor a waiver, but was caused by circumstances beyond his control and by the fraud and collusion of plaintiff and others acting for him.

3. Under the act of 1887, a debtor may claim his homestead after sale, when suit is brought for possession.

OPINION

HEMINGWAY, J.

The land in controversy was sold under executions against the appellee in January, 1887, and comprised his homestead. He was entitled to hold it as exempt to him from sale under execution, but, as the law then stood, he was required to claim it before sale in the manner prescribed. Art. 9, sec. 3, Const.; Mansf. Dig., 3006. He did not claim it before sale, and the question is, did he lose it thereby? The answer depends upon the effect which the law will give to certain conduct of the plaintiffs in the executions in the proceedings relating to the sale.

The law regulating the sale of lands under execution provides that notice of such sale shall be given for twenty days next before the day of the sale by posting printed advertisements at the court-house door and five other public places in the county in which the sale is to be made, one of which must be the premises to be sold, and by publishing the same in a newspaper published in the county. Mansf. Dig., sec. 3049. The notice is intended to inform the owner that his property will be sold,...