113 Ark. 332 | Ark. | 1914
Lead Opinion
(after stating the facts). The deed from James Purcell to his infant son, James E. Purcell, .recited that it was executed in consideration of love and affection. It was made after the execution of the mortgage on the land by James Purcell to McCarthy & Joyce. Therefore, the deed conveyed only the equity of redemption of J ames Purcell. J ames E. Purcell was not made a party to the proceedings to foreclose the mortgage on the land, ¡and, having -been emitted from the foreclosure suit, he still had the right to redeem from the foreclosure sale. Dickinson v. Duckworth, 74 Ark. 138. The decree in the case of Shoemaker & Gann against James E. Purcell, which was instituted in 1899, provided that the latter should have a designated length of time within which to redeem from the foreclosure sale and that if he failed to do so the title to said land should be vested in Shoemaker & Gann. James E. Purcell failed to exercise his right to redeem. The condition of James E. Purcell as an infant appeared in the record in that, action. The decree in the case divested him of an interest in lands, and he therefore had a right to show canse against the decree within twelve months after arriving at full age, as prescribed in section 6248 of Kirby’s Digest. Paragould Trust Co. v. Perrin, 103 Ark. 67. Section 734 of Kirby’s Digest provides that when one conveys land by deed purporting to convey a fee simple estate and does not own the land at the time, but afterward acquires the title, such after-acquired title, whether legal or equitable, passes at once to his grantor. Under this section, counsel for James R. Purcell contends that when James Purcell bid off the land at the mortgage foreclosure sale he acquired the title thereto by such purchase and that it was an after-acquired title which inured to the benefit of James R. Purcell. It will be remembered that James Purcell became the purchaser of all the lands embraced in the mortgage at the foreclosure sale, and, not being able to pay the amount of the mortgage debt, in order to save ,a part of the lands for his infant son, James R. Purcell, ■he assigned his certificate of purchase to a part of the ■lands to Gann & Shoemaker in consideration that they .pay off the amount of the mortgage debt. This they did, ■and a deed was made to them, and was approved by the court. A bidder to whom property has been struck off at a judicial sale may assign his bid before the deed has been delivered, and the deed will be made directly to the assignee and pass the title to him. 24 Cyc. 31; Wiltsie on Mortgage Foreclosure Sales (3 ed.), vol. 1, § 678. In the case of Wells et al. v. Rice et al., 34 Ark. 346, the court said that a sale made under a decree of the chancery court is not completed until confirmed by the court ■and a deed to the purchaser confers upon him no right to the property. Continuing, the court said:
“ ‘The theory of sales of this character is,’ as the court says in Sessions v. Peay, 23 Ark. 41, ‘that the court is itself the vendor, and the commissioner, or master, its mere agent in executing its will. The whole proceeding, from its incipient stage up to the final ratification of the reported sale, and the passing of the title to the vendee, and the money to the person entitled to it, is under the supervision of the court. The court will confirm or reject the reported sale, or suspend its completion as the law and justice of the case may require.’ ”
The purchaser under the foreclosure sale and his assignees became parties to the suit and are bound by the subsequent proceedings had in the cause. As said in the case of Proctor v. Farnam, 5 Paige, Chan. Rep. (N. Y), 614, “It is a familiar principle that any one who interferes pendente lite with the subject-matter of a suit in equity submits himself to the jurisdiction of the court to be exercised by petition or motion in the original suit, and that he acquires no rights in that manner which may not be modified, controlled - or directed without any new proceeding directly against him, and this doctrine applies with full force to the case of a purchaser under the decree and to all who claim interest under him.” Therefore, we do not think that James Purcell acquired any title, either legal or equitable, under his purchase at the foreclosure sale, but we are of the opinion that the title under such sale passed to his assignees when they paid the purchase price under orders of the court and a deed was executed to them and approved by the court. James Purcell assigned his certificate of purchase to a part of the lands to them and had the deed executed to them for the purpose of saving a part of the lands embraced in the mortgage for his infant son, James R. Purcell. Under these circumstances, every principle of equity favors the claim of Shoemaker & Gann, and if they are to be defeated at all it is simply because of section 734 of Kirby’s Digest, which provides that a conveyance to one who has already attempted to. grant away the estate conveyed inures to the benefit of his grantee. The statute must be reasonably construed so as to effectuate its purpose, but it should not be construed to defeat the ends of justice.
Again, it is contended by counsel for James R. Purcell that the decree in the case of Shoemaker & Gann against James Purcell, Jr., should be reversed because J ames R. Purcell was not made a party to that suit and no service was had upon him. The record shows that James R. Purcell and James Purcell, Jr., are the same persons; and this court has held that under such circumstances the middle initial of a name is immaterial. Fincher v. Hanegan, 59 Ark. 151. It is true James Purcell, Jr., was named as the defendant in the action; and it was •alleged that he was a minor under the age of fourteen years. The summons was issued directed against James Purcell, Jr., but it was served by delivering a copy to James Purcell, the father of James R. Purcell, and also by leaving another copy with James Purcell for. James R. Purcell, his'infant son, the latter not being at the time at home. This was a substantial, if not a literal, compliance with the statute in regard to the service of summons upon infants under the age of fourteen years. Huggins v. Dobbs, 57 Ark. 628.
Upon the Whole record we find no error, and the decree will be affirmed. /
Rehearing
on rehearing.
Counsel for appellant insists that he should have a rehearing on the authority of the case of Green v. Maddox, 97 Ark. 397. In that case Henry Maddox became the purchaser of the land at a commissioner’s sale, under a chancery decree, in November, 1888. He executed his notes for the purchase money and the sale was reported by the commissioner to the chancery court and was confirmed by the court at its March term, 1889. Henry Maddox went into possession of the land and commenced the erection of a house upon it. Prior to the maturity of the notes which he had executed to the commissioner for the purchase money of the land, Henry Maddox died, leaving surviving as his heirs at law the plaintiff, Hayden Maddox, and his elder brother, named Donald. At the February term, 1890, of the chancery court J. D. Maddox presented to the court a petition alleging that he was the uncle and guardian of the minor heirs of Henry Maddox, deceased, and that there were no funds of said decedent’s estate out of which to pay the purchase money of said land sold to Henry Maddox, and that he had paid the same out of his own funds. He asked an order of the court directing the commissioner, for that reason, to execute a deed to him for the land, which was accordingly done. Upon appeal to this court it was held that when J. D. Maddox paid the purchase money to the commissioner after the sale of the land was made by him to Henry Maddox, and the sale was eon-firmed, he became a constructive trustee for the heirs of Henry Maddox, to whom his rights descended. Here the facts are essentially different. It is true that James Purcell on March 27, 1897, was the accepted bidder at the commissioner’s sale and that the sale was confirmed on July 2, 1897.
Section 6323, Kirby’s Digest, provides that a conveyance by a commissioner shall not pass any right until it has been examined and approved by the court, which approval shall be endorsed on the conveyance and recorded with it. Here, as in the case of Green v. Maddox, supra, the confirmation was made, in the first place, of the sale and afterward of the deed, but in the case of Green v. Maddox it will be- noted that the purchaser died before any one was substituted,™ his stead as purchaser. It is a recognized practice to allow another person to be substituted for the purchaser and to take the deed directly to himself. Jones on Mortgages (6 ed.), vol. 2, § 1652. In such cases the court is the seller and the whole, matter remains under its control until the sale is, completed and until the delivery of the deed and its approval by the court. When this is done it relates back to the time of the sale and carries the legal title from the delivery of the deed.
In the present case Gann & Shoemaker were substituted as purchasers in the place of James Purcell by the latter’s consent and direction. In this respect the present case is essentially different from the case of Green v. Maddox, supra. James Purcell, by becoming the purchaser, and Shoemaker & Gann having agreed to be substituted as purchasers in his stead, by his consent and direction, all became parties to tbe foreclosure proceeding insofar as their rights were concerned. James Purcell having agreed that Shoemaker & Gann should be substituted as purchasers in his stead and that under said agreement, they having paid the purchase money and the deed having been executed to them and approved by the court, they became the purchasers of the land in the foreclosure sale and Purcell did not obtain any title, legal or equitable, within the meaning of section 734, Kirby’s Digest. Neither can it be said that James Purcell, being the mortgagor, and thus bound to pay the mortgage debt, that when he bid in the land at the foreclosure sale and the sale was confirmed, this amounted to a satisfaction and discharge of the mortgage. The reason for this is that he asked that Shoemaker & Gann be substituted in his stead as purchasers, and it was their money that bought the property and paid for it. They were properly substituted as purchasers in his stead and the result is precisely the same as if they had personally bid in the property at the commissioner’s sale. Bensieck v. Cook (Sup. Ct. of Mo.), 19 S. W. 642.
Motion for rehearing will be denied.