Johnson v. Baum

• Court: Arkansas Supreme Court
• Writing for the Court: HUMPHREYS, J.
• Citation: Johnson v. Baum, 250 S.W. 354, 158 Ark. 441 (Ark. 1923)
• Decision Date: 23 April 1923
• Docket Number: 332
• Parties: JOHNSON v. BAUM

250 S.W. 354

158 Ark. 441

JOHNSON v. BAUM

No. 332

Supreme Court of Arkansas

April 23, 1923

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor reversed in part.

Decree affirmed.

Saye & Saye, for appellant.

The foreclosure decree should be modified. The court erred in allowing credit for the $ 727.82 claimed by Morris & High for levee taxes paid, the decree therefor declaring a lien, being by consent, with no proof offered and no defense for the minors by guardian ad litem. The final decree erroneously included said amount. 3 Pomeroy's Equity Jurisprudence, § 1305; 98 Am. Dec. 733; 44 L. R. A. (N S.) 1182; 120 N. E. (Ill.) 542; 60 Ark. 526; 44 Ark. 244; 39 Ark. 235; 42 Ark. 227; 107 Ark. 1, 154, S.W. 947. The amount of the decree must be reduced accordingly. 137 Ark. 58, 207 S.W. 215. The decree of confirmation should be reversed, the owner of the property or those interested in it having been confused and misled by the manner of conducting the sale. 11 S.E. 508. We are not unmindful of decisions in 96 Va. 603, 70 A. S. R. 882; 65 Ark. 152, 67 A. S. R. 910; 131 Ark. 397 Ann. Cas. 1918-D, 433, and 237 Mo. 496, 141 S.W. 650. The lands did not, because of the confusing and misleading manner of the sale, bring their true market value. The administrator was making strenuous efforts to get title to the lands, and had an option from Baum, the bidder, to purchase it for the amount of his debt. 135 Ark. 206, 205 S.W. 113. This agreement between Baum and Leach, the administrator, deprived the estate of the full value of the lands, and the rights of infants were involved. 130 N.W. 952, 112 S.W. 613; 51 A. S R. 529; 109 S.E. 724; 16 R. C. L. 97, § 70; 24: Ark. 432; 60 Ark. 526; 107 Ark. 1; 137 Ark. 58; 14 R. C. L. 267, § 42; 2 Paige (N. Y.) 99; 84 Ky. 685, 16 R. C. L. 90, § 65, 97, § 71. Decree of foreclosure should be reduced to amount of plaintiff's debt and interest, and the decree of confirmation reversed.

John F. Clifford, for appellee.

No error committed in entering the consent decree permitting the redemption of lands from Morris & High for amount of levee taxes paid and declaring a lien therefor against all parties in interest. Cases cited by appellant not in point. Foreclosure and sale for taxes and purchase by Morris & High was in the Pulaski Chancery Court before the chancellor who rendered decree herein, and it was only a detail of procedure as to how the tax feature should be worked out. 107 Ark. 58. There was nothing fraudulent shown about the sale nor that it was for an inadequate price. 77 Ark. 219.

OPINION

HUMPHREYS, J.

This is an appeal from a decree foreclosing a mortgage for $ 4,355.19, and a tax lien for $ 727.82 in favor of appellee Robert Baum, against the following described real estate in Pulaski County, State of Arkansas, to-wit: W 1/2 of SW 1/4 of section 3, and the SE 1/4 of the SE 1/4 of section 3 township 2 south, range 10 west, and the SW 1/4 of the SW 1/4 of section 34, township 1 south, range 10 west, containing in all 160 acres, more or less. The mortgage was executed by M. J. C. Johnson, Alice Johnson, his wife, and Maria Johnson, his mother. M. J. C. Johnson owned the fee in the land, subject to the dower interest of his mother. Prior to the institution of the foreclosure proceedings M. J. C. Johnson died intestate, leaving as his survivors his wife, Alice Johnson, two minor sons by her, Herman Johnson and Jackson Johnson, and three adult children by Anna Johnson Jackson, his former wife, whose names are Willie Lue Taylor, Maria S. Johnson and Eugene Johnson. The three latter named heirs are nonresidents of the State of Arkansas. The lands were forfeited for the nonpayment of taxes due Plum Bayou Levee District for the year 1910, and were sold and purchased by said district. After the expiration of the time for redemption, same being five years, Morris & High obtained a deed to the land from the district, and subsequently paid the taxes on a part of it. M. J. C. Johnson died in the month of November, 1920, and soon thereafter M. L. Leach was appointed administrator of his estate. In May, 1921, Robert Baum commenced foreclosure proceedings in the Pulaski Chancery Court, and made Maria Johnson, the mother of M. J. C. Johnson, Alice Johnson, his surviving wife, all of his heirs, M. L. Leach, his administrator, G. W. Morris and Ben D. High, trading as Morris & High, and others who claimed leasehold interests in the land, parties defendant in the suit. Personal service was obtained upon all the residents, and constructive service upon the nonresidents. After service was obtained George Vaughan, a regular practicing attorney in said court, was appointed guardian ad litem for the minor children, Herman Johnson and Jackson Johnson, and an attorney ad litem was appointed to represent the nonresident adult heirs. Answers were filed by the resident adult heirs, the guardian of the minor heirs and the attorney ad litem for the nonresidents, denying seriatim the allegations in the bill of Robt. Baum. Morris & High filed an answer and crossbill setting up title to the land under and by virtue of purchase from the Plum Bayou Levee District, which in turn had purchased it at the tax forfeiture sale for the unpaid taxes for the year 1910. Maria Johnson and all the heirs, including the minors, filed answers denying the validity of the deed obtained by Morris & High from the levee district, and denying that they were entitled to any sum on account of the payment of taxes upon the land. The guardian ad litem for the minors did not file a separate answer for them to the crossbill of Morris & High, but they were included in the answers filed by the adult heirs and their grandmother, through their attorneys, who set up every defense to the crossbill which could have been set up by the guardian ad litem, had he filed separate answers for his wards. Before any evidence had been taken in the case, a compromise consent decree was entered by the court canceling the deed from the Plum Bayou Levee District to Morris & High and declaring a paramount lien against the land in their favor for $ 727.82 on account of taxes claimed to have been paid by them on the land. Robert Baum immediately purchased their lien, and included the amount in his bill for foreclosure. The cause was then submitted to the court on the pleadings and testimony, which resulted in a lien being declared against the land in favor of Robert Baum of $ 5,083.01, and an order for the sale of the land to satisfy said lien. Pursuant to the order of sale, the land was advertised and sold by the commissioner at public auction to C. M. Flynn for $ 7,025, who made the highest unconditional bid therefor. It was then reported to the court, whereupon Alice Johnson, Anna Johnson Jackson, Eugene Johnson, Willie Lue Taylor, Jackson Johnson and Herman Johnson, minors, by their mother, Alice Johnson, filed exceptions thereto upon the alleged ground that the property sold for only one-half its value on account of the...