85 Ark. 163 | Ark. | 1908
This suit involves a controversy between the plaintiff, H. T. Buie, and the defendants,-S. W. Woods and wife, and the interveners, who are the heirs at law of E. L. Hayes, deceased, over the title to an undivided three-eighths interest in a tract of land in Marion County which had been located and patented as a mining claim, eách of said parties claiming title to said interest. Buie and Woods own the other undivided interest in the tract, as well, a.s another' tract with which it had been consolidated and patented as a mining claim,
Woods claims title to the interest in controversy by purchase under an .execution sale against E. L. Hayes, who has since died, and the interveners, his. heirs, contest the validity of the execution sale on the ground that the land was not properly described in the sheriff’s notice of sale. The correct description of the land is south half of the southwest quarter of section 13 in township 18 north, 15 west. It was described in the notice as “3-8 interest in the Cane Spring Mining Claim, situated on the S. of the S. W. of section 13 Tp. 18 north of range 14 west in Marion County, Arkansas.” The notice was, in other respects, given in compliance with the statute regulating sales of land under execution, the sale. was .in all other respects regularly conducted, and the sheriff’s deed executed pursuant to the sale properly describes the land. Woods is an attorney at law, and was attorney for the judgment creditor under whose execution the land was sold.
The object of giving notice of sales under execution is to inform the debtor that his property is about to be sold and also to inform the public so that attendance of purchasers may be attracted and competitive bidding be induced. It necessarily follows from this that the desired object is accomplished if the description of the property be sufficient in the notice to identify it with reasonable certainty, so that no one may be misled thereby. Tiedeman on Sales, § 260; 2 Freeman on Execution, § 285b.
It will be noted that the only defect in the description was in giving it in range 14 west, instead of 15 west. Range 14 west is in Baxter County, and describing the land to be in range 14 west in Marion County was a patent misdescription. The land was also described in the notice as “3-8 interest in the Cane Spring Mining Claim,” and there was evidence tending to show that' the property in question was commonly known by that name. There is a conflict in the evidence on that point, some of the witnesses testifying that the property was at that time known as the Bluff Spring Mining Claim; but we think that the preponderance of the evidence shows that it was known by the name under which it was sold. The description was, we think, sufficient to identify the property. ■ Certain it is from the evidence that no one was misled by the defect in the description. ,E. E. Hayes, the execution debtor, was present at the sale, and made no objection thereto. On the contrary, he expressed himself as satisfied with the sale, and informed the purchaser that he expected to redeem the property from the sale before the time allowed by law expired.
This court has repeatedly held that “the statute requiring notice of execution sales to be given is directory merely, and that a mistake in, or even a failure to give, notice will not invalidate a sale to an innocent purchaser.” Files v. Harbison, 29 Ark. 307; Youngblood v. Cunningham, 38 Ark. 571; Huffman v. Gaines, 47 Ark. 226. This is the generally established rule in other States. 2 Freeman on Executions, § 286, and cases there cited.
This court also held that a debtor may waive the imperfections of the notice. Huffman v. Gaines, supra.
An attorney for a judgment creditor who buys at his client’s sale under execution is not an innocent purchaser, but the debtor may be guilty of such conduct as will amount to an estoppel. Huffman v. Gaines, supra.
In this instance the debtor was present at the sale, and expressed his satisfaction and acquiescence in the sale. It does not appear that either he or the purchaser knew that the property was imperfectly described in the notice, but he knew that his property was being sold under a valid judgment against himself, and that the attorney for the judgment creditor was purchasing the property for a valuable consideration. We think that was sufficient to amount to a waiver of a merely directory provision for his benefit.
The chancellor erred in holding that the execution sale to Woods was invalid.
The point of controversy between Buie and Woods is this; Buie claims that Hayes abandoned his interest in the property by asserting, in a suit formerly pending between him and Buie to settle their partnership affairs, a claim for reimbursement for the value or price of his interest in the Cane Spring Mining Claim; that Woods was his attorney in the litigation with' Hayes, and knew of Hayes’s abandonment of the claim, but fraudulently failed to disclose the information and purchased the Hayes interest under execution. The evidence does not sustain the charge of fraud or concealment. The chancellor so found, and we think his finding is sustained iby the preponderance of the evidence.
There is also evidence sufficient to warrant the finding that Buie represented to Woods that Hayes owned an undivided three-eighths in the property and induced him to purchase it at the execution sale. Afterwards Buie and Woods entered into' an agreement with J. H. Hand, who owned an interest in the property and also another tract, to consolidate' the two tracts under a new location. This was done, and a patent was obtained on the hew location. This being true, Buie is now estopped to deny that Woods obtained title to the Hayes interest.
The decree of the chancellor settling the controversy between Buie and-Woods in favor of-the latter is therefore correct and should be affirmed. The complaint of the interveners should be dismissed for want of equity.
Reversed and remanded with direction to enter a decree in accordance with this opinion.
