McGowan v. Burns

• Decision Date: 27 October 1930
• Docket Number: 188
• Citation: 31 S.W.2d 953,182 Ark. 506
• Parties: MCGOWAN v. BURNS
• Court: Arkansas Supreme Court

31 S.W.2d 953

182 Ark. 506

MCGOWAN v. BURNS

No. 188

Supreme Court of Arkansas

October 27, 1930

Appeal from Poinsett Chancery Court; J. M. Futrell, Chancellor affirmed.

Decree affirmed.

D. E McGowan, for appellant.

Claude B. Brinton and Caraway, Baker & Gautney, for appellee.

OPINION

SMITH J.

Appellant bought a tract of land in Poinsett County at a sale for the taxes of 1925, and, after paying the taxes for the ensuing two years, obtained a clerk's deed. On November 15, 1928, after receiving his deed, appellant brought suit against the tenant in possession for rent. The original owners and the holder of a mortgage from them intervened, and were thereafter treated as defendants, and the cause was transferred to equity, where a decree was rendered canceling the tax deed, but declaring a lien against the land in favor of appellant for the amount of the taxes which he had paid, and a commissioner was appointed to sell the land if the amount so adjudged was not paid within the time limited.

Pursuant to this authority, the commissioner advertised and sold the land on August 17, 1929, at which sale appellant became the purchaser. A report of this sale was duly made, which came on for confirmation and was duly heard on September 9, 1929, at which time defendants filed exceptions to the report of sale and objected to its confirmation upon the grounds that the land had been sold for an inadequate price, and that a tender had been made and refused before the sale of the amount due under the decree of sale, and there was a renewal of the tender of the amount due under that decree.

The matter of the confirmation of the sale was heard on September 9, 1929, and the decree then rendered recites that it was heard upon "the report of the sale by the commissioner above named and the decrees of this court formerly rendered in this cause, and the evidence of J. L. Burns, from all of which the court finds: that the sale in question should be set aside upon condition." It was then decreed that the commissioner's sale be set aside upon the condition that the defendants, or either of them, pay to the plaintiff, or to the clerk of the court, on or before the next regular term thereof, the sum due plaintiff, "as fixed by the prior decree of this court herein," with interest at six per cent.

Thereafter, on January 6, 1930, which appears to have been a day of the ensuing December term of the court, the matter was further heard on a motion filed by plaintiffs to set aside the decree of September 9, 1929, and a response thereto filed by J. L. Burns.

Plaintiff insisted, in his motion last referred to, that there had been even then no sufficient tender of the sum due him, and he prayed that the decree of September 9, 1929, be set aside, and that the court approve and confirm the sale of the commissioner which the decree of September 9, 1929, had refused to do. Upon this hearing the court found there had been a substantial tender and a payment to the clerk of the court of the full amount demanded by the clerk under and in satisfaction of the prior decrees of the court, and that the defendants had "substantially, if not literally, complied with the order of the court," and the prayer for confirmation of the commissioner's sale was again refused, and this appeal is from that decree.

The decree of the court below must be affirmed. The appeal was perfected July 5, 1930, which was barely less than six months from the date of the decree of January 6, 1930, but this latter was not the final decree. The rights of the parties were fully adjudged under the decree rendered September 9 1929, and that was the final decree, and the decree of ...