United States v. Weir

• Decision Date: 30 March 1964
• Docket Number: No. LR-60-C-146.,LR-60-C-146.
• Citation: 235 F. Supp. 306
• Parties: UNITED STATES of America, Plaintiff, v. James WEIR, Defendant.
• Court: U.S. District Court — Eastern District of Arkansas

235 F. Supp. 306

UNITED STATES of America, Plaintiff, v. James WEIR, Defendant.

No. LR-60-C-146.

United States District Court E. D. Arkansas, W. D.

November 14, 1963.

On Motion for New Trial or Rehearing March 30, 1964.

James M. Barker, Jr., Hamburg, Ark., William Drew, Lake Village, Ark., and James P. Donovan, Dallas, Tex., for defendant.

Robert D. Smith, Jr., U. S. Atty., and James W. Gallman, Asst. U. S. Atty., for plaintiff.

HENLEY, Chief Judge.

This protracted case is now before the Court on the motion of defendant, James Weir, hereinafter at times called movant, to set aside an execution sale conducted by the Marshal whereby Weir's interest in approximately 1,000 acres of land in Chicot County, Arkansas, was sold to L. J. Warren of Lake Providence, Louisiana, for a price of $60,000. The assignees of Warren, hereinafter called respondents, resist Weir's motion and have filed a petition of their own seeking confirmation of the sale, issuance of a Marshal's deed to the premises, the issuance of a writ of assistance to put them in possession of the land, and an injunction restraining Weir from interfering with their possession. Respondents also seek any other relief to which they may have shown themselves to be entitled.

The matter has been heard in open court, and has been submitted on the record in the case, oral testimony, and written briefs. This memorandum incorporates the Court's findings of fact and conclusions of law with respect to the issues presented.

The lands in question were acquired by movant in 1955, and prior to the sale which took place in April 1962 were owned by movant, subject to a mortgage in favor of The Connecticut Mutual Life Insurance Company. In 1959 movant had a rice allotment of ten acres. He deliberately overplanted this allotment very substantially, and the Government commenced this suit against him to recover penalties as provided by the Agricultural Adjustment Act of 1938, as amended and supplemented, hereinafter at times called the Act.¹

Movant resisted the claim of the Government and in connection with his defense he was represented by a firm of attorneys from Dallas, Texas, and by local counsel. It was contended by Weir that the Act was unconstitutional, that the Act imposed no personal liability for penalties on farmers who produced commodities in violation of the Act, that the rice produced by him in 1959 was intended to be sold as seed rice and was not covered by the Act, that he did not plant as much rice as the Government contended, and that he had been discriminated against by the local officials administering the rice program in Chicot County.

The case having come to issue the Government filed a motion for summary judgment which the Court granted on February 12, 1962. Judgment in favor of the Government was entered in the sum of $16,972.09 plus six percent interest from March 23, 1960. The judgment itself bore interest at six percent from date of rendition. Movant appealed and the judgment was affirmed. Weir v. United States, 8 Cir., 310 F.2d 149.

Although movant was advised repeatedly that he could stay execution of the judgment pending the appeal by posting a supersedeas bond, he refused to supersede and obtained no stay.

On February 28, 1962, on application of the United States Attorney the Clerk issued a writ of execution commanding the Marshal to make of the goods and chattels, lands and tenements of Weir within this District the sum of $16,972.09 principal, plus accrued interest in the sum of $1,965.92 and costs amounting to $59.80.

On March 5, 1962, the Marshal, acting through one of his deputies, Bob E. Powell, served the writ on Weir at his home in Dermott, Arkansas, and after making an unsuccessful effort to levy on personal property made his levy on Weir's farm. The sale was held on the afternoon of April 17, 1962, and the successful bidder was Captan Jack Wyly, an attorney of Lake Providence, who, along with Carneal Warfield of Lake Village, Arkansas, was representing Weir at the time. By prearrangement Wyly was bidding for Warren, and it was understood that Warren was acquiring the property for movant's benefit. It seems to have been movant's intention at the time to redeem or to bring about a redemption of the land within the one year period allowed for redemption by Ark.Stats.1947, § 30-440. However, it appears from the testimony taken in connection with the instant motion that Weir did not expect to pay or cause to be paid in redemption more than about $23,000; he seems never to have contemplated having to pay $60,000 plus interest on that sum.

On September 28, 1962, Warren assigned his certificate of purchase to respondents in consideration of their payment to the Marshal of the bid price of $60,000 plus interest. The amount paid to the Marshal by respondents was $61,639.34. That sum, of course, was more than sufficient to discharge the judgment rendered in this particular case, but at the time of the payment there were pending in the Pine Bluff Division of this District three other suits brought by the Government against Weir to collect additional penalties under the Act. In view of the pendency of those cases, the Marshal, at the request or direction of the United States Attorney, after paying off the judgment in this case impounded the balance of the funds in his hands, and as the other suits against Weir went to judgment those judgments were satisfied out of the impounded funds.

Movant's period of redemption expired on April 17, 1963. He failed to redeem, and on April 19 filed the instant motion. When the motion was filed, the Marshal had not issued a deed to respondents and the issuance of a deed was held in abeyance pending disposition of the motion.

Movant contends first, and principally, that he was not permitted to select personal property to be sold in satisfaction of the execution, as provided by Ark. Stats.1947, § 30-401, and that the lands were not subdivided into tracts for purposes of sale, as provided by Ark.Stats. 1947, §§ 30-421 and 30-422. He also contends that the lands sold for a grossly inadequate price, and the Court is willing to assume, although the matter is by no means clear, that he contends that the Marshal made an excessive levy.

Before discussing the controlling facts the Court considers it desirable to quote the Arkansas statutes just mentioned, and to comment upon them.

Section 30-401, derived from the Revised Statutes of Arkansas, ch. 60, § 28, is as follows:

"Selection of property to be sold — Levy. — The person against whom any execution may be issued may select what property, real or personal, shall be sold to satisfy the same; and if he give to the officer a list of the property so selected, sufficient to satisfy such execution, the officer shall levy upon such property and no other, if it be sufficient in his opinion to satisfy such execution, and if not, then upon such additional property as shall be sufficient."

Sections 30-421 and 30-422, derived from Act 37 of 1868, presuppose that real property is to be sold in satisfaction of an execution. Those sections are as follows:

"30-421. Division of real estate into tracts. — In all sales of real estate, under execution, when the tract or tracts to be sold contain more than forty 40 acres, the same shall be divided, as the owner or owners may direct, into lots containing not more than forty 40 nor less than twenty 20 acres, and the officer whose duty it may be to sell said property, shall begin at one corner of said real estate, to be designated in the notice published by him advertising said sale, and proceed to sell in such tracts of not more than forty 40 nor less than twenty 20 acres each, of contiguous territory, unless^* the whole of said tract or tracts be disposed of, unless the execution shall be sooner satisfied.

"30-422. Corner where sale of tracts commenced. — In all cases where the corner at which the sale is to commence has not been designated in accordance with section one § 30-421 of this act, the officer whose duty it may be to sell said tract or tracts of land, shall commence at the northeast corner as required in section two 2 of this act."

It is apparent that section 30-401 does not impose upon the officer serving a writ of execution a mandatory duty to levy upon personal property in preference to real estate or to refrain from seizing real estate as long as there is available personalty. That section merely gives to the judgment debtor the right or privilege of selecting in the first instance the property, whether real or personal, which he desires to have sold in satisfaction of the judgment. Wade v. Deniston, 180 Ark. 326, 21 S.W.2d 424. The statute was designed for the benefit of judgment debtors, and where a judgment debtor takes no action to avail himself of that benefit, he waives it. Trapnall v. Richardson, Waterman & Co., 13 Ark. 546, 549; see also 21 Am.Jur., Executions, § 376, 33 C.J.S. Executions § 95b.

Nor is section 30-421 a self-executing statute. It does not come into operation unless and until the owner directs the subdivision of his property for the purpose of sale, and if the owner gives no such direction, and if the property is sold in solido without objection to the mode of sale the right conferred by the statute is lost. In Reynolds v. Tenant, 51 Ark. 84, 9 S.W. 857, it was said (pp. 87-88 of 51 Ark., p. 858 of 9 S.W.):

"The sale of the land was made in a body. This, it is contended, is in violation of the statute * * *. This requirement has been held by this court to be directory, and at the option of the owner, and may be waived. In this case the owner was present at the sale, and did not ask that the land be divided up according to the statute, or object to the sale. The requirement of the statute was for his benefit. He did not ask the sheriff to comply with it. He had a right to waive it, and did so by his failure to demand it. It does not appear that the land failed to bring a fair price.

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