Smith v. Spradlin

Wood, J., (after stating the facts). Section 3246 of Kirby’s Digest reads as follows: “If an officer who levies, or is required to levy, an execution upon personal property, doubts whether it is subject to execution, he may give to the plaintiff therein, or his agent or attorney, notice that an indemnifying bond i:s required.” Doubtless the sheriff required the execution of the bond under the supposed authority of the above statute, but the stat-' ute confers no such authority before the levy of an execution in his hands upon real property. The bond had no binding force against the appellant under the above statute. See Williams v. Skipwith, 34 Ark. 529, and Walker v. Fetzer, 62 Ark. 138, 139. The facts, stated in the complaint show that the lands, which afterwards proved to be a homestead, were levied upon :and sold under an execution issuing out of the circuit court based upon a valid judgment. Prima foche, the property of a judgment debtor is subject to execution. The homestead right, or the right to claim a homestead as exempt from sale under execution, is a personal privilege. “As against all the world except the debtor and his wife,” as is said in Snider v. Martin, 55 Ark. 139, “the sale is valid, and it is valid against them unless they, or one of them, elect to defeat it. If they neglect or refrain from asserting such right, the debtor’s title vests in the purchaser. It cannot be said, therefore, that nothing passes; it is more nearly correct to ;say that the purchaser takes a defeasible estate and it is sufficient to constitute a valuable consideration. ’ ’ See also Blythe v. Jett, 52 Ark. 549; Jones v. Dillard, 70 Ark. 71. Under the authority of the above case, the defeasible title of appellee- which he obtained by purchase of the land was, to say the least, a legal consideration for the note which he executed to the sheriff. In Pullen v. Simpson, 74 Ark. 596, it is said: ‘ ‘ The doctrine of caveat emptor is in fullest force in sales under execution. ’ ’ See Allen v. McGaughey, 31 Ark. 253, 258; Fulbright v. Morton, 131 Ark. 492, 499. According to the allegation of the complaint, the land was' sold by the sheriff and purchased by the appellee on July 19, 1915. At that time the appellee was legally bound to execute his note for the purchase price of the land and to pay the same when it became due. Such was the effect of his contract of purchase, as evidenced by the note. The note was based, -as already stated, upon a perfectly-valid consideration. The appellee, suo motu, had no right to demand of 'the appellant the execution of a bond to indemnify him as a condition upon which he would perform his contract to pay the note. Nor did the sheriff, for the benefit of appellee, have any such right. Appellee was bound to know that be was purchasing the land ¡subject to the homestead right, that is, the privilege of the execution debtor or his wife to claim the land as a homestead. The defeasible title which appellee thus obtained constituted the considerationfor his contract evidenced by his note, and appellee was bound to perform his contract according to its terms. “The payment of a sum of money by one who is already legally bound to pay the ¡same is. not a valid consideration for a contract.” Killough v. Payne, 52 Ark. 174; Worthen v. Thompson, 54 Ark. 151, 152. Hence the appellee could not be heard to say that the payment of his note was the consideration for the bond in suit. Since there was no statutory authority for this bond, and no consideration for it when treated as a common law obligation, no right of action in favor of the appellee could be predicated upon it. Therefore, the court erred in not sustaining appellant’s demurrer to the appellee’s complaint. The court below should have entered a judgment in favor of the appellant dismissing the appellee’s complaint and in favor of appellant for his costs. The judgment of the circuit colirt is therefore reversed, and the above indicated judgment will be entered here.