Nash v. Delinquent Lands

Wood, J., (after stating the facts). 1. The act of 1907, page 285, approved March 26, 1907, under which this suit was instituted for the purpose of enforcing the collection of delinquent taxes against the lands in controversy, provides that “Said suit shall be conducted in accordance with the proceedings and practice in chancery courts in this State except as otherwise provided herein.” There is no exception anywhere in the act to the effect that sales made by order of the chancery court in pursuance of the act shall not be reported to and confirmed by the court. Therefore, by the express terms of the statute the suit to enforce the liens declared against the lands for the delinquent taxes must be ‘ ‘ conducted in accordance with the practice and proceedings of chancery courts in this State.” It is in accordance with the practice and proceedings of chancery courts in this State in rendering judgments for amounts which, by contract of parties, or under the law, are declared and made liens on land, and in enforcing or collecting such judgments by ordering a sale of the land tp have a commissioner appointed to execute the orders of the court. In such cases the sales are strictly judicial sales, made by the court through its officer appointed for the special purpose, and it is the uniform rule in this State to have the proceedings of the commissioner appointed by the court for the purpose of executing its orders report the sale to the court for its approval and confirmation before the sale is complete. Sessions v. Peay, 23 Ark. 41; Thomason v. Craighead, 32 Ark. 391; Wells v. Rice et al., 34 Ark. 346; Apple v. Kelley, 47 Ark. 413; State National Bank v. Neel, 52 Ark. 110; Stotts v. Brookfield, 55 Ark. 307.’ The sale of the lands under the decree of chancery court in the instant cáse was therefore not complete until the commissioner had made his report and until the sale had been confirmed. See Miller v. Henry, 105 Ark. 261. The court, being the vendor, would have no other way of knowing whether the orders of the court, in pursuance of law, had been carried out by the commissioner. The provisions of the act are to the effect that “immediately after such sale said commissioner shall, by proper deeds, convey to the purchaser the lands so sold and the title to said lands shall thereupon become vested in such purchasers as against all others whomsoever, and such deeds by the commissioner, when duly executed in substantial conformity to the provisions of this-act and recorded, shall be received as evidence in all oases showing an indefeasible title in such purchasers, unassailable in either law or equity.” These provisions are not irreconcilably in conflict with the view that the sale is not complete until confirmed by the court. The confirmation of the report of the commissioner showing the approval of the sale, of course relates back and takes effect and makes the sale complete as of the-date when the same was made, and makes the deeds valid as of the date they were executed. The petitioners, therefore, were in apt time in filing their exceptions and their petition objecting to the confirmation of the sale, and asking that the sale, for the irregularities set up, be set aside, and that the deeds be cancelled, etc., as a cloud on their title. The attack they make,-therefore, is not collateral, but a direct proceeding to set aside the sale. 2. But while confirmation was necessary before the sale became complete it was the duty of the court, in the absence of fraud, irregularity or mistake affecting the validity of the sale, to confirm the same and to approve the deeds made to the appellant, Wilkins. George v. Norwood, 77 Ark. 216; Banks v. Directors St. Francis Levee District, 66 Ark. 490; Robinson v. McClintock, 86 Ark. 255. The only question therefore remaining to be considered is, whether or not the sale was void for fraud and irregularities. We find that the notice of sale was given in the manner and form as required by law, and in accordance with the decree ordering the lands to be sold. The price paid by Wilkins for the land was an amount equal to the taxes, interest, penalty and costs assessed against the lands by the court in its decree. The law authorized the lands to be proceeded against “for the collection of such assessments, installments, interest and fee and costs due thereon.” There was no evidence tending to show that the lands were offered for sale or sold for less than the amount owing and due thereon, as declared by the court in its decree. Where the law authorizes land to be sold for taxes, penalty, interest and costs as determined by the court in its decree to be due against the lands, if the lands, when offered at public sale upon open and free competitive bidding, bring no more than that amount, it can not be said that the purchaser who offers such amount for the lands, and whose offer has been accepted, has paid an inadequate price. Speaking of judicial sales generally, in George v. Norwood, supra, we said: “A judicial sale will not be set aside on account of mere inadequacy of price unless the inadequacy be so gross as to shock the conscience or raise a presumption of fraud or unfairness.” See also Carden v. Lane, 48 Ark. 219. When one pays for the lands the amount of the judgment authorized against them under the statute, and no one, under fair competition in bidding, is willing to pay more, it can not be said that the purchaser paid an inadequate price. The sale was not void because the sum of $2 was added as a part of the costs of the same for each forty-acre tract on account of the deed made by the commissioner to the purchaser. In a judicial salé an erroneous or excessive item included in the costs will not render the sale void. The matter being before the chancery court for confirmation, the court can see that the decree is correct and that justice and equity is done by eliminating the erroneous item of costs before confirming the sale. 3. The last question to be considered is, whether the chancery court erred in refusing- to confirm the sale because of alleged collusive bidding. This was tried as an issue in the case and proof, without objection, was taken tending to establish the fact that there was collusion among the bidders at the sale whereby it was agreed that certain parties should have the privilege of bidding on certain tracts that were offered for sale. This is purely a question of fact, as to whether any such collusion existed, and it could serve no useful purpose to set out in detail and discuss the evidence bearing upon this issue. The evidence concerning it is somewhat voluminous. The court made a general finding in favor of tlie petitioners on all the issues. This would include the issue as to whether or not there was collusive bidding. We are of the opinion that a finding to the effect that there was an agreement among the parties bidding that they would not bid against each other for the particular tracts that each wanted and purchased at the sale is supported by a preponderance of the evidence. Certainly such a finding would not be clearly against the weight of the evidence. We are convinced, after a careful consideration of all the testimony concerning this issue, that there was not that open, free, fair and competitive bidding which the law contemplates when lands are sold at a judicial sale. We find nothing in the record estopping the appellee, Pierce, from seeking to prevent the confirmation of the sale because of his having accepted the excess over what his lands sold for at the sale. The testimony clearly shows that there was no acquiescence on his part in the sale, and that the money he accepted was received by him in ignorance and under a misapprehension of the facts concerning the sale. The decree of the chancery court is therefore correct and it is affirmed.