Montgomery v. Black
| Decision Date | 22 April 1905 |
| Citation | 86 S.W. 1006,75 Ark. 184 |
| Parties | MONTGOMERY v. BLACK |
| Court | Arkansas Supreme Court |
Appeal from Monroe Chancery Court JOHN M. ELLIOTT, Judge.
STATEMENT BY THE COURT.
This is a suit in chancery brought by appellees, John S. Black as one of the heirs and as creditor of S. L. Black, deceased, and Mallory, Crawford & Co., creditors of said S. L. Black, to set aside the sale of lands in controversy made to Polk Montgomery, one of the appellants, by the sheriff of Monroe County, under orders of sale rendered by the circuit court and special execution issued thereupon. Montgomery, the purchaser of the lands, F. J. Robinson, administrator of the estate of S. L. Black, deceased, and T. H. Jackson, sheriff were made defendants. It is alleged in the complaint that in 1893, one Charles Adams, then a resident of the State and owner of the lands in controversy, being indebted to defendant Robinson in the sum of $ 300, and to the firm of M D. & J. W. Martin, in the sum of about $ 1,200, delivered possession of said lands to his said creditors to secure said debt, and authorized them to rent said lands and apply the rents pro rata to the payment of their debts. That, pursuant to that arrangement, defendant Robinson took possession of the lands, and rented the same out, collected rents, etc. That after said land had been delivered to them by Adams, who immediately removed from the State, it was agreed between Robinson, and the Martins that neither of them would institute any suit against Adams affecting their respective rights in the premises, without notice to the other, and that whatever sums might be realized from the lands, either as rent or from sale of the land, should be shared between them in proportion to their respective claims against Adams. That in violation of the agreement, Robinson, without notice to the Martins, brought suit against Adams, and caused an attachment to be levied on the lands, and obtained judgment at the April term, 1898, of the circuit court for the amount of his debt, $ 410.71; and the Martins, after receiving information of that suit, also sued Adams, and attached the lands, and obtained judgment against Adams at the November term, 1898, for the amount of their debt $ 1,710.25. That after the rendition of these judgments, the Martins assigned their said judgment and conveyed certain other property to Robinson as administrator of the Black estate in settlement of a debt owing by them to that estate, which settlement was confirmed by the probate court. That thereafter Robinson caused the Adams land to be sold under said two judgments, and purchased them in the name of defendant Montgomery, who is his uncle, and applied the proceeds of the sale first to the satisfaction of his own debt, and the balance upon the Martin judgment. That the price for which the lands were sold, $ 664, was grossly inadequate, and that the lands were worth a great deal more than that amount. That on the day before the sale Robinson agreed with plaintiff, J. S. Black, that he, Robinson, would buy the lands for the Black estate and that Black was thereby induced not to attend the sale.
The defendants filed separate answers, in which they both deny that the lands were bought for Robinson, and allege that, on the contrary, the purchase was made by Montgomery for his own benefit. Defendant, Robinson, in his answer also denied that he had made any agreement with the Martins concerning a division of the rents or proceeds of sale of the Adams land, or that he had agreed with plaintiff, Black, to buy the lands at the sheriff's sale for the benefit of the estate of S. L. Black. He admits, however, that on the day before the sale he promised Black that he would buy the land for the benefit of the estate if he could do so legally, and would submit the question to his attorney, but that on the morning of the sale day his attorney advised him that he could not buy for the estate, and that he immediately sent word to that effect to plaintiff, J. S. Black, by a messenger, and caused the sale to be postponed until the arrival of a train upon which Black could have reached Clarendon, the place of sale.
The court, upon final hearing of the cause, rendered a decree in accordance with the prayer of the complaint, cancelling the sale of the land to Montgomery, and requiring defendant Robinson to account for the rents and profits of the land, giving credit to the Black estate for a pro rata share thereof in accordance with the relative amounts of the two judgments against Adams.
Decree affirmed.
H. A. & J. R. Parker, for appellants.
The objection that a sale of land was sold en masse can be raised by the defendant only. 34 Ark. 399; 51 Ark. 84; 64 Ark. 126. The same is true with reference to the bond required under section 5877 of Sandels & Hill's Digest. 66 Ark. 1; 62 Ark. 421. If a sale is fair in every respect, the court will not set it aside before confirmation; if the price is grossly inadequate, after confirmation it will not be set aside except for fraud. 44 Ark. 502; 47 Ark. 93; 53 Ark. 110; Rorer, Jud. Sales, §§ 180-182; 65 Ark. 152; 56 Ark. 240; 66 Ark. 490; 64 Ark. 126; 55 Ark. 233. An administrator has no right to purchase. 26 Ark. 445; 28 Ark. 290; 23 Ark. 622. The sale cannot be collaterally attacked. 49 Ark. 397; Black, Judg. 245, 271; Crawford's Dig. 150. The attachments against the Adams property were regular. 66 Ark. 1.
M. J. Manning and Grant Green, for appellees.
The chancellor's findings will not be disturbed, unless against the preponderance of the evidence. 44 Ark. 216; 41 Ark. 294; 50 Ark. 185; 55 Ark. 112; 71 Ark. 605; 73 Ark. 489. A beneficiary cannot become the purchaser of property under his control. 33 Ark. 587. The judgment in the case of Robinson v. Adams, was rendered without notice. Kirby's Dig. §§ 4424, 6042, 6058, 6111. The statute must be substantially and strictly complied with. 30 Ark. 723. A sale made without the bond under the statute is void. 40 Ark. 130.
H. A. & J. R. Parker, for appellants in reply.
If the purchaser pays to the creditor, whose recovery is sufficient to absorb the whole of the proceeds, the purchaser will be discharged unless the officer holds paramount claims upon such proceeds. 47 N.H. 341; 1 Doug. (Mich.) 417.
OPINION
MCCULLOCH, J., (after stating the facts.)
The determination of this cause turns solely upon the question of fact whether appellant, Montgomery, became the purchaser of the lands in good faith, or whether he purchased for the benefit of Robinson. The latter, being administrator of the Black estate, had no more right to buy at the sheriff's sale than he would have had to buy at a sale of lands of the estate made by himself as administrator.
Leaving out of consideration the disputed fact of his having agreed to share the rents and proceeds of sale with the Black estate, he held, as such administrator, a judgment against Adams, and it was his duty to see that the property brought at the sale the highest price obtainable. He represented at the sale the interest of the Black estate, as much as he did his own; and if it be conceded that he was entitled to first satisfaction out of the proceeds of sale, yet the duty rested upon him to see that the property brought as much as possible, and his relation to the estate forbade that he should become the purchaser at the sale. His attitude as bidder at the sale was in direct conflict with his duty to the estate, and is strictly forbidden by salutary and well established rules. Cook v. Martin, ante, p 40; Imboden v. Hunter, 23 Ark. 622; Trimble v. James, 40 Ark. 393; ...
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