Manchester v. Goeswich
Decision Date | 11 July 1910 |
Citation | 130 S.W. 526,95 Ark. 582 |
Parties | MANCHESTER v. GOESWICH |
Court | Arkansas Supreme Court |
Appeal fro Mississippi Chancery Court, Osceola District; Edward D Robertson, Chancellor; affirmed.
Decree affirmed.
J. T Coston, for appellant.
Before land can be sold under a power contained in a mortgage, it must be appraised by three disinterested householders in the county appointed by a justice of the peace who also lives in the county. 69 S.W. 551. They must actually view the property. 94 S.W. 715. And a sale without complying with the statute in these respects is invalid. 105 S.W. 586. The burden was on defendant to show that he was an innocent purchaser. 35 Ark. 102. The recitals in the deed are prima facie evidence only. 41 S.W. 488; 66 S.W. 62; 61 Ark. 473 121 S.W. 357; 14 Ark. 9; 15 Ark. 187; 6 So. 841; 18 So. 46; 28 P. 769. Appellee is not an innocent purchaser. 43 Ark 467; 50 Ark. 327; 121 S.W. 355; 46 N.W. 1135; 10 Ill. 456; 6 La. 39; 22 Am. St. Rep. 725; 126 S.W. 833; 122 S.W. 933; 38 F. 486; 15 Pet. 43; 6 Minn. 456.
W. J. Lamb, for appellee.
The debtor must do equity before a void sale will be set aside. 117 N.W. 112; 61 S.E. 12. In such case a deed from the mortgagee to the purchaser clothes him merely with the mortgagee's lien on the land. 116 Mass. 108; 1 Mich. 338; 51 Am. Dec. 95; 33 Mich. 392; 47 Barb. 212; 25 N.Y. 320; 54 S.W. 1011. Such sale does not discharge the debt and mortgage. 169 Mass. 179; 47 N.E. 602; 117 Mo. 508; 70 Ill. 46. Appellee is an innocent purchaser for value. 84 Ill. 319; 98 572; 12 Allen 412; 44 N.E. 532; 84 S.W. 417; 23 A. 522; 120 Mo. 423; 119 Mo. 280; 92 N.W. 1117; 7 N.W. 826; 79 Ark. 1.
OPINION
Mary Manchester, Nettie Manchester and Jessie Manchester, three sisters, for cause of action against Oscar Goeswich, state That J. S. Manchester departed this life some time in 1898, intestate, leaving the plaintiffs his only children and heirs surviving; that at the time of his death he was the owner of an undivided three-fourths interest in certain land; that the defendant, Oscar Goeswich, claims to be the owner of the land under the following chain of title.
"Wherefore plaintiffs pray that the sale be set aside and annulled, that the plaintiffs may have a decree against the defendant for timber cut and removed from the land, and the rents and profits thereon," etc.
The defendant answered and admitted the death of J. S. Manchester, and denied that he was the owner of the land at the time of his death; admitted that the trust deed provided that the sale must be advertised at least twenty days, but denied that the sale was not advertised for that time; denied that the land was at the time of the sale worth $ 1,000; admitted that it was sold to John A. Lovewell for the sum of $ 200.50; and denied that it was a shockingly inadequate price for the land; denied that he has sold, cut and removed from the land $ 1,500 worth, or any other amount, of good merchantable timber, or that he has received and collected thereon in rents and profits the amount of $ 1,000, or any other sum.
The court, having heard the evidence adduced by the parties found that the defendant was a bona fide purchaser for value without notice of the irregularities of the trustee's sale, and was therefore...
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