Miller v. Henry

• Decision Date: 28 October 1912
• Citation: Miller v. Henry, 150 S.W. 700, 105 Ark. 261 (Ark. 1912)
• Parties: MILLER v. HENRY
• Court: Arkansas Supreme Court

150 S.W. 700

105 Ark. 261

MILLER v. HENRY

Supreme Court of Arkansas

October 28, 1912

Appeal from Crittenden Chancery Court; Charles D. FriersonChancellor; affirmed.

Decree affirmed.

Allen Hughes, for appellant.

1.The levee board and its grantee are estopped.82 Ark. 531; 81 Id. 244;93 Id. 490;Kleber, Judicial Sales, § 392.

2.No formal order of confirmation is necessary.17 A. &E. Enc. L 991;72 Ark. 339;76 Id. 146;Kirby'sDig § 6321.The fairness of the sale and its regularity were settled by the confirmation.77 Ark. 216;66 Id 490;124 F. 133.There was no appeal nor bill for review.97 Ark. 314;72 Id. 67.

3.Confirmation of a levee tax sale is unnecessary.Acts 1895, p. 91.A bidder at a foreclosure sale is a party to the suit and bound by it.136 U.S. 89, 95.But he may be heard in the trial court or by appeal if not concluded by the decree.He is entitled to notice.34 Cal. 658;58 Ill. 239;21 Ia. 238;7 Tex. 598.

4.Laches is not imputable to a sovereign, but the rule does not apply to quasi public corporations.91 U.S. 398;56 Ark. 491;63 Id. 56;139 U.S. 693;99 Ark. 45.

A. B. Shafer, for appellee.

1.Confirmation was necessary.Acts 1895, p. 88;70 Ark. 409; 66 Id. 490.The sale was expressly set aside, and the order was valid.16 Wall. 196;60 Ark. 453;50 Id. 45-8;16 Cyc. 521.

2.There is no estoppel.11 A. & E. Enc.L. (2 ed.) 439;93 Ark. 490-5.

3.Nor was there laches.99 Ark. 455.

OPINION

MCCULLOCH, C. J.

This is an action instituted by appellee against appellant in the chancery court of Crittenden County to cancel a recorded deed purporting to convey a certain tract of land in that county.Both parties trace their title back to separate sales made by commissioners of the chancery court in actions instituted by the Board of Directors of St. Francis Levee District to enforce payment of delinquent levee taxes.Appellee claims under a sale made in the year 1898 pursuant to decree of the chancery court for the taxes of prior years; and appellant asserts title under a sale made in the year 1899 for the levee taxes of 1898.The levee district itself was the purchaser at the sale made in 1898, and, the sale being confirmed, a conveyance was made pursuant thereto.On December 7, 1898, the board of directors commenced another suit to enforce payment of delinquent levee taxes for the year 1898, and this tract was included in the suit, and a decree was entered condemning it for sale to satisfy the lien for delinquent levee taxes.The commissioner on March 27 1899, made sale of the lands embraced in the decree, and appellant was the successful bidder for the tract in controversy, and received from the commissioner a certificate of his purchase.The commissioner made his report in writing to the court, and, the same coming on for hearing March, 1, 1900, the court made an order refusing to confirm the sale of this tract to appellant and vacating the sale.The sales of the other tracts of land embraced in the report were, with one or two exceptions, confirmed, and the commissioner was ordered to make deeds to the respective purchasers.On the same day the commissioner presented to the court separate deeds to the purchasers at that sale, and included a deed to appellant for the land in controversy, which was, together with the other conveyances presented, examined by the court and approved, and indorsement to that effect was made by the chancellor upon each instrument.Appellant was not present in court on the day these proceedings were had, but was a nonresident of the State, and the deed so executed to him by the commissioner was forwarded by mail.Appellee purchased the land from the levee board on October 19, 1910, and received a quitclaim deed purporting to convey the same to him.He commenced this suit against appellant on December 16, 1910.The final hearing of the cause resulted in a decree in appellee's favor, quieting his title and cancelling appellant's deed, and an appeal has been duly prosecuted to this court.

The chancery court refused to confirm the sale made to appellant, and cancelled the same on the grounds that the lands were at the time of the decree the property of the levee board; that the same were not subject to taxation at that time; and the court was without jurisdiction to render a decree condemning the same for sale.

Conceding that the facts of the case bring it within the decision of this court in Robinson v. Cross, 98 Ark. 110, 134 S.W. 954, and that the decree adjudicating the lands to be subject to lien for levee taxes was a conclusive bar to further adjudication of that question, and that it could not be reopened as ground for refusing confirmation of the sale under said decree (Terry v. Logue, 97 Ark. 314, 133 S.W. 1135), the fact remains that the court rendered its decree refusing to confirm the sale and vacating it.That was a final decree of the court which is open to attack only by such methods as may be available to set aside other decrees.State National Bank v. Neel, 53 Ark. 110, 13 S.W. 700.

The condition of the record, as indicated in the above statement of facts, does not fairly admit of a construction that the court made an order confirming the sale.It is true, as contended by learned counsel for appellant, that no formal order of confirmation is necessary, anything being sufficient which expresses unqualifiedly the approbation of the court.Ousler v. Robinson, 72 Ark. 339, 80 S.W. 227;Cowling v. Nelson, 76 Ark. 146, 88 S.W. 913;Jacks v. Kelley Trust Co., 90 Ark. 548, 120 S.W. 142.The fact that the chancellor made an indorsement upon the deed of his approval thereof is prima facie evidence of a confirmation of the sale and, ordinarily, would be the equivalent of an express order of court confirming the same; but such a presumption can not be indulged, in the face of an order of the court entered on the same day refusing to confirm the sale and setting it aside.Taking the whole record together, it is patent that the presentation of the deed by the commissioner to the court was a clerical misprision, and the action of the chancellor in indorsing his approval under those circumstances can not be treated as tantamount to a confirmation of the sale.

It is next insisted that the order vacating the sale is void for the reason that it was made in the absence of appellant as purchaser and no notice was given him of the proceedings.

A purchaser at judicial sale becomes a party to the proceedings and subject to the orders of the court.Porter v. Hanson, 36 Ark. 591.

In Requa v. Rea, 2 Paige Ch. (N. Y.) 339, Chancellor Walworth said:

"Where a person becomes a purchaser under a decree, he submits himself to the jurisdiction of the court in that suit as to all matters connected with such sale or relating to him in the character of purchaser."

The sale is not complete until confirmed by the court, the theory being that the court is the vendor, and "will confirm or reject the reported sale, or suspend its completion, as the law and justice of the case may require."Sessions v. Peay, 23 Ark. 39;Thomason v. Craighead, 32 Ark. 391;Wells v. Rice, 34 Ark. 346;State National Bank v. Neel, 53 Ark. 110, 13 S.W. 700: Phillips v. Benson, 82 Ala. 500, 2 So. 93.

The purchaser having become a party to the suit "as to all matters connected with such sale or relating to him in the character of purchaser," it is difficult to perceive why he is entitled to notice when the court is about to reject the sale.He must take notice of all proceedings with reference to the report of sale and confirmation or rejection thereof.We are aware that there are a few cases holding to the contrary; but the question seems to be confused with that of vacating a sale after it has been confirmed, and, of course, under those circumstances notice to the purchaser must be given, as the sale has become complete upon confirmation.It is, we think, a contradiction of terms to say that one who is a party to the proceedings, and therefore required to take notice of all steps, is entitled to have actual notice given to him.

Our conclusion is, that it was within the jurisdiction of the court, without actual notice to the purchaser, to refuse confirmation of and set aside the sale, and that this is conclusive unless other grounds are shown which warrant the court, in the subsequent proceedings, in setting aside that order.

Appellant makes his answer a cross complaint in the nature of a bill of review seeking to set aside the former order of the court disaffirming the sale.The basis of his contention in that respect is that he was not present in court when the order was made; that he had no notice thereof; and that he was misled by the fact that the clerk executed to him a deed which was duly approved by the court and delivered to him.

A sufficient answer to this is that, as he was a party to the suit, it was his duty to be present and take notice of all steps in the proceedings.It does not appear from the allegations of the complaint, nor from the agreed statement of facts upon which the case was tried, that the deed was delivered to him at a time which misled him to his disadvantage and prevented him from appearing in court before it adjourned in order to resist the disaffirmance.In other words, his failure to take notice of the order of the court refusing to confirm his sale was brought about by his own neglect in...