Jennings v. Carter

| Ark. | May 10, 1890

Hemingway, J.

The land in controversy was sold under executions against the appellee in January, 1887, and comprised his homestead. He was entitled to hold it as exempt to him from sale under execution, but, as the law then stood, he was required to claim it before sale in the manner prescribed. Art. 9, sec. 3, Const.; Mansf. Dig., 3006. He •did not claim it before sale, and the question is, did he lose it thereby? The answer depends upon the effect which the •law will give to certain conduct of the plaintiffs in the executions in the proceedings relating to the sale.

The law regulating the sale of lands under execution provides that notice of such sale shall be given for twenty days next before the day of the sale by posting printed advertisements at the court-house door and five other public places in the county in which the sale is to be made, one of which must be the premises to be sold, and by publishing the same in a newspaper published in the county. Mansf. Dig., sec. 3049. The notice is intended to inform the owner that his property will be sold, and to procure the attendance at the sale of persons desiring to purchase it. Personal notice to the owner of land is not required, and the only guaranty that the law provides him that it will not be sold without his knowledge is in the advertisement before mentioned. The importance to him of a substantial compliance with the law in that regard is therefore apparent.

1. Sale of Fraudulent*10"T Terusement. it ft the duty of the sheriff, in following the directions of the statute, to make his advertisement fulfill the purpose of jaw• jn posting notice on the premises to be sold, he should select a place where it would most likely be seen, and not one where its discovery would be the least probable; and in publishing in a newspaper, he should select a paper most likely to give the information to those for whom it is intended, and not one which they would probably never see. No intelligent officer desiring to discharge his duty would post the notice on a tree in a forest or publish in a newspaper without circulation in the neighborhood, unless in the particular case no other means of notice was available. To do so would be to violate the spirit of the law, although complying with its letter. If such should be done by the procurement of the plaintiff in execution, it would be a gross wrong, and, if it resulted in an injury to the defendant, a fraud upon his rights. To post a notice where it would never be seen, out of a regard for the feelings of the debtor’s family, might be commendable, if it did not evidence a disregard of his constitutional right to hold a home for them.

Upon a careful reading of the evidence in this case, we are led to the conviction that the proceedings before the sale were conducted under the directions of the plaintiffs in execution, with the hope and to the end that the appellee would never learn of the pending sale, and thereby lose his homestead. In order to accomplish the wrong, they attempted to defeat the purpose of the law in providing for a notice of sale, while making a pretense of observing it. They could acquire no rights through such a proceeding.

2. Fraudulent 5tamey.edgeo£ it ft contended that title passed untainted with fraud to Devin, who was a stranger to the proceeding, and from him to appellant. To this it is a sufficient answer that Devin purchased through West, his attorney, who placed the proceeding to sell upon foot, and consummated it after the relation was fixed. Devin is affected with the knowledge of West, and on the trial he testified that he “thought it looked like the notice had been published with the intent to prevent appellee and his friends from seeing it.” We think the appearances justified that impression.

Creditors cannot take advantage of the temporary absence of their debtors to obtain executions, give notice of sale which will never reach the debtors or their friends, and thereby deprive them of their constitutional exemptions. Such efforts should not be made and can never receive the countenance of a court. As the land has not passed to a bona fide purchaser for value, the appellee was entitled to the relief asked.

The judgment will be affirmed.