Strahan v. Atlanta National Bank of Atlanta, Texas

• Decision Date: 20 December 1943
• Docket Number: 4-7259
• Citation: 176 S.W.2d 236,206 Ark. 522
• Parties: Strahan v. The Atlanta National Bank of Atlanta, Texas
• Court: Arkansas Supreme Court

176 S.W.2d 236

206 Ark. 522

Strahan v. The Atlanta National Bank of Atlanta, Texas

No. 4-7259

Supreme Court of Arkansas

December 20, 1943

Appeal from Little River Chancery Court; A. P. Steel, Chancellor.

Affirmed.

Johnson & Johnson, for appellant.

Head & Shaver, for appellee.

OPINION

McFaddin, J.

This appeal challenges the validity of an order confirming a foreclosure sale. On July 19, 1943, the chancery court of Little River county, Arkansas, (1) rendered judgments in favor of appellees, Atlanta National Bank and John Coates, against appellant, Joe G. Strahan, totaling in excess of $ 4,600; and (2) decreed a foreclosure of the mortgages executed to appellees by appellant on certain property, consisting of an oil well drilling rig, casing machinery, etc., all then located near Wilton, in Little River county. The property was ordered sold to satisfy the said judgment, interests and costs; and the clerk was appointed commissioner, and the sale was directed to be held at the courthouse door. The appellant, Joe G. Strahan, had entered his personal appearance to the complaint and cross-complaint, and does not question the correctness of the decree. On September 4, 1943, the commissioner held the sale as directed, and all parties were present in person or by attorney, and the Atlanta National Bank purchased the property at a bid of $ 6,000.

The commissioner reported the sale to the chancery court for approval; and then appellant appeared by attorney and filed the following pleading against the report of sale:

"Comes the defendant, Joe G. Strahan, and for grounds of exceptions, says:

One

"That the bid and offer of $ 6,000 for the complete well drilling unit is grossly inadequate and out of proportion to its intrinsic value which defendant alleges to be in excess of $ 10,000.

Two

"That the purported sale was made by the commissioner at the east front door of the courthouse at Ashdown, Arkansas, as advertised, but the property was not present for bidders to view same, at the time of sale being located 7 miles north of Ashdown and was not and has never been in the custody of the commissioner for delivery.

"Wherefore, defendant prays that the report of sale be disapproved and the sale and all proceedings leading up to it be declared void."

On September 20, 1943, an order was made denying Strahan's exceptions, approving the commissioner's report of sale, and confirming the sale. Then appellant Strahan invoked the jurisdiction of this court. First, he filed, in this court, a petition for writ of prohibition (cause No. 7251) seeking to prohibit the chancery court from entering the order confirming and approving the sale because of the second ground mentioned in his exceptions. When this petition for writ of prohibition was denied, appellant Strahan filed this present appeal from the order approving and confirming the sale; and this appeal is cause No. 7259 in this court. The parties have raised the questions hereinafter discussed.

I. The Delay Question. The appellee has filed a motion in this court asking that this case be affirmed as a delay case under §§ 2776 et seq. of Pope's Digest. For practice on delay cases, reference is made to Supreme Court Procedure by C. R. Stevenson, pp. 59-60. In Vaught v. Green, 51 Ark. 378, 11 S.W. 587, Chief Justice Cockrill, speaking for this court, announced the rule on delay cases to be that where it was necessary to examine the pleadings and abstract and weigh the testimony pro and con to see whether there was probable cause to justify the appeal, then the motion for affirmance as a delay case would not be granted. It is evident from this present opinion that the questions raised by appellant have given this court serious concern; and we therefore hold that this is not a delay case within the meaning of the rule.

II. The Inadequacy of the Price. In the chancery court appellant excepted to the report of sale on the ground that the price of $ 6,000 "is grossly inadequate and out of proportion to its intrinsic value, which defendant alleges to be in excess of $ 10,000." Inadequacy of price alone is insufficient to require a refusal of confirmation. This proposition was laid down in Fry v. Stewart, 44 Ark. 502, and followed in a long list of cases, a few of which are: Nash v. Delinquent Lands, 111 Ark. 158, 163 S.W. 1147; Hawkins v. Jones, 131 Ark. 478, 199 S.W. 549; Knight v. Equitable Life Assurance Society, 186 Ark. 150, 52 S.W.2d 977; Free v. Harris, 181 Ark. 644, 27 S.W.2d 510; Martin v. Jirkovsky, 174 Ark. 417, 295 S.W. 365; George v. Norwood, 77 Ark. 216, 91 S.W. 557, 113 Am. St. Rep. 143, 7 Ann. Cas. 171; in which last-named case it was said: "There is a uniform current of decisions settling that official sales will not be opened on mere representations that more may be obtained for the property." In the case of Federal Land Bank v. Ballentine, 186 Ark. 141, 52 S.W.2d 965, we said: "It is of the greatest importance to encourage bidding by giving to every bidder the benefit of bids made in good faith and without collusion or misconduct, and at least when the price offered is not unconscionably below the market value of the property. Nothing could more evidently tend to discourage and prevent bidding than a judicial determination that such a bidder may be deprived of the advantage of his accepted bid whenever any person is willing to give a larger price. The interest of owners in particular cases must give way to the maintenance of a practice which, in general, is in the highest degree beneficial."

In his brief appellant says that the rule, of mere inadequacy of price being insufficient to defeat a confirmation, has never been applied by this court in any cases except those involving real property; and we are asked to apply a different rule to personal property. But no authority is cited as to why any distinction should be made between real property and personal property in this regard; and we perceive no such distinction. The chancery court heard testimony of three witnesses for appellant who testified that the property was worth in excess of $ 10,000; and also heard testimony of three witnesses for appellees who testified that the property was only worth $ 5,500. It was a disputed question as to the value of the property, and the action of the chancery court in confirming the sale is in accordance with the preponderance of the evidence. So this contention made by the appellant is without merit.

III. Property Not at Place of Sale. The other exception of appellant to the report of sale was the fact that the sale was held at the courthouse door in Ashdown and the property (the drilling rig, etc.) was not present for bidders to view, but was located seven miles from the courthouse. This question came before us in the application for writ of prohibition, and we held there, and reiterate here, that the case of Morrow v. McGregor, 49 Ark. 67, 4 S.W. 49, settles this question adversely to the appellant. The commissioner's notice of sale described the property in detail, and stated the exact location. This was a judicial sale (see Annotation, 69 A. L. R 1194). Appellant and appellees were present at the sale, and the testimony showed that each of them knew all about the property. No prejudice resulted to anyone by reason of the property not being at the courthouse door. In fact, to have moved the property might have been to cause considerable damage. We adopt here the language of Chief Justice Cockrill in Morrow v. McGregor: "Excellent reasons may be given why personal property should be within the views of the bidders at a public sale, and it is therefore the policy of the law to require it; but we do not think it would be wise to carry this policy to the extent of declaring that it is so far beyond the power of the chancellor to dispense with the presence of the property as to render the action of the court a nullity."

We, therefore, hold that the chancery court had the discretion and authority to approve the sale under the facts in this case, and that the appellant's contention in this regard is without merit.

IV. The Regularity of the Session of the Court. The Little River chancery court meets in regular terms on the third Monday in May and November of each year; and appellant argues in this court that...