Moore v. McJudkins

Wood, J., (after stating .the facts). The undisputed evidence shows that two houses, practically new, were on the lot at the time of the sale which had cost $950; that the appellants were offering to pay cash the sum of $600. It is clear that the advertisement was not in the newspapers having the greatest circulation and best calculated to bring the notice to the attention of the public .in the town of Morrilton. Only two parties were present, the purchaser and a real estate broker who offered to loan the money to the purchaser to pay for the property. A decided preponderance of the evidence shows that the lot in controversy sold for a grossly inadequate price. The testimony tends to prove that it was the custom for the commissioner in chancery, in making sales of lands, to notify the attorneys of parties interested. The attorneys for the appellants relied upon the custom, and therefore were not present at the sale. If the custom had been followed in the instant case, they would have been present and would have bid for the property the sum of $600, which they were authorized to do. by their clients who were not present and who had employed Strait & Strait-to look after the matter for them and to see that the property brought at least $600. While there was no actual -fraud perpetrated by the appellees, and while, strictly speaking, there was no illegality in the sale, yet it is obvious that the property in controversy did not bring a fair price because of circumstances which created a condition in the nature of an unavoidable casualty that prevented the appellants or their attorneys from attending. The undisputed evidence discloses that the attorneys for appellants would have attended if they had been notified by the commissioner of the day of sale, which notice it was the custom of the commissioner to give and which the commissioner would have given on this occasion, had he not forgotten. The price bid- for appellees alone, perhaps, was not so grossly inadequate as to shock the conscience, yet the undisputed testimony shows that the price was grossly inadequate, and that the attorneys for appellant were misled and surprised greatly to the injury of their clients, by the conduct of the commissioner in failing to observe the custom which had been established of notifying the interested attorneys of the date when sales of real estate ordered by the chancery court were to take place. The case comes within the rule announced by us in the recent case of Hawkins v. Jones, 131 Ark. 478, 481, where we said.: “In the case of Colonial & U. S. Mortgage Co. v. Sweet, 65 Ark. 152, Judge Battle announced the rule which has been frequently followed that confirmation of a judicial sale should not be withheld where it appears that ‘the property sold has brought its market value, and the purchaser and those conducting or controlling it have committed no fraud, unfairness or other wrongful act injurious to the sale, and there is no occurrence, or special circumstance, affording, as in other cases, a proper ground for equitable relief.’ ” We are. of the opinion that the circumstances of this case bring it within the latter part of the rule stated by Judge Battle. In Stevenson v. Gault, 131 Ark. 397-402, we approved the rule announced by the Supreme Court of the United States in Graffam v. Burgess, 117 U. S. 180, as follows: “If the inadequacy of price is so gross as to shock the conscience, or if, in addition to gross inadequacy, the purchaser has been guilty of any unfairness, or has taken any undue advantage, or if the owner of the property, or party interested in it, has been for any other reason misled or surprised, then the sale will be regarded as fraudulent and void, or the party injured will be permitted to redeem the property sold.” Undoubtedly the' facts of this record disclose that the appellants were misled and surprised by the conduct of the commissioner in not notifying their attorneys, as it had been his custom to do. The sale was not complete until the same was confirmed by the chancery court. For the error in confirming the sale as reported, the decree will be reversed and the cause remanded with directions to refuse confirmation of the sale, and for such other and further proceedings as may be .necessary and not inconsistent with this opinion.