ARK.] MARTEN V.. JIRKOVSKY. . 417 MARTEN v. JIJIKOVSKY.. .„ ()Pinion delivered Jnne 18,.1927. MORTGAGES—CONFIRMATION OF.. FORECLOSURE . ;SALE.—,Where . due- and legal notice of the time,.terms and place of a-judicial sale of land has been given, and there is no fraud or unfairness in the conduct of the sale, confirmation Of it will iiot be.'reids'ed' CM account of being at 'a grossly *inadequate price. • . . , Appeal, from Saline Chancery Court ; W.- B. Puffie, Chancellor ; affirmed. • Avery M. Bl6unt, for appellant. Ernest.Briner, for appellee.. • MEHAFFY, J. This is an 'appeal 'from an order of the • chancery court confirming a sale of lands under decree of foreclosure. ' The 'attorney who •brought the suit to foreclose the mortgage lived at Searcy; Arkan-sas,.and learned from the clerk of the chancery court in Saline COunty that no Answer had*been filed, and ;that the court would meet on December -18, 1925. He 'prel pared.a decree and. mailed , it to the clerk, and wrote to the chancellOr that-he would not , be present when the chancery court met at Benton;but that , he. had prepared and, sent .a decree to the clerk, and, if no' answer had • been filed on the 18th„ to let the decree be entered. The decree prepared by the appellant's attorney provided for the .sale of-the land if the amount . due was not paid within ten days. Tbe attorney stated in'his letter to the chancellor . that ,he expected to leave for Cali-fornia about the 15th of December, and therefore would not be present when court met. on the 18th.- . When court met on the 18th of December a decree was rendered, and the , court-. appointed the clerk.conimissioner to make the sale, and; among other things; the decree provided that; unless the amount, was paid within ten days, the property. should be: advertised ond sold, and, folloWing the directions:in the decree, which, as we haVe said,- was prepared-by the attorney for the plaintiff; the eommis-sioner advertised and,sold.the land; 'and it waspurchased by appellee .for $200...
418 MARTEN v. JIRKOVSKY. [174 The undisputed testimony shows that the attorney had had other , foreclosure suits in Saline County, and, when he did not'attend the sale himself, he communicated with. tbe clerk to bid the property in for his client, the plaintiff. But in this instance nothing was said to tbe clerk about it, and all he knew about tile s wishes of the attorney for the plaintiff, was what he learned from the decree prepared by plaintiff's attorney. There was some testimony that the land was worth $5 an acre. There were 71 acres, and, at $5 an acre, if would have brought $355. The testimony, however, also showed that the witnesses did not know of any , sales of lands like this, and the undisputed testimony showed that farms in that section of the county had depreciated in value and many of them had been abandoned. Plaintiff's attorney was not only out of the , State, Milt the plaintiff was a nonresident and knew nothing about the sale. In the attorney's letter to the chancellor be did not make any request to postpone the sale and did not make any to the clerk, nor did he make any suggestion that his client wanted to buy or that the clerk should bid it in for his client. In fact" he made no request , or suggestion either to the chancellor or to tbe clerk ,about a postponement of tbe sale- or a purchase or bid by his client: He' had asked in the same letter for the postponement of several other cases, but made TIO suggestion about thiS case. Tbe court, of course, had a right to assume that, when he had prepared tbe deeree, providing for a sale within ten days, had suggested the postponement of his other cases, and had given no direction at all abont this sale, except .what was in tbe decree prepared. by him, he desired the sale made if tbe payinent was not made within ten days. If there bad been any misfortune or any unforeseen thing that prevented him from being present, or if there was any evidence of fraud On the part of the defendant or the purchaser, the ;chancellor would have been 'justified in setting aside the; sale, but there was nothing of this sort. The chancellor heard the
ARE.] MARTEN V. A TIRKOI T SKY. ! -, 419 ' testimony and.confirmed the sale, although the testimony shows that the price. was ,probably:;som.ewhat: smaller than . the actual. value. . The land .was advertised ;and exposed to. sale • by the coMmissioner in accordance, with the decree of the court. This court has said • :`*' '" When 'a . sale niade 'in All respects according to the terms' Of the decree,' arid neither fraud, mistake nor mis-rePreVentatien can: be alleged against it, the faith of the edurt is'pledged• to ratily'and perfect it. * There ik a *uniforni'current 'Of 'decisions settling that official..sales Wilt 'MA be' opened- oil 'mere representations that more MAY:be. ' Obtained' , Rix.. '-the • property: This well-knOwn pradtice Is' : in . ' iteCotd . With:the - policy 'of Mir law respect-ingi , g i•ch 'Safes; . ivhich 'Are requited 'to : be' made after adVettikeinent • Stifficient . to give publieity, , , by public outcry; -CO the highest 'bidder. • 'It iS . .ot the 'greatest impor- • tance lb *enceni.:age bidding by;gililig , to eVery bidder 'the benefit of bids'made in good 'faith and' withont ol-. rilikOnduet; and- At. leaSt . Whenthe price' Offered is nOt • unconscionably' 'below th'e market value' of : the property. Nothing could more evidently tend to discourage and prevent bidding than a judicial determination that such a bidder may be deprived , of the advantage of his accepted bid whenever 'any Perk& is willii te giVe • a: larger price. The interest Of 'oWnets in / patticZr cases must give way . to the maintenance: of A . practice,,which,, in ; general, is in the . highest degree beneficial." George v. Norwood, 77 Ark. 216,- 91 S. W..557, 113'Ain.K*Rep.143, 7 Arin. • Cas: it has been . repeatedly held by this court: • "That i where dile-And legal notice of the •time; terms . and place of a judicial 'sale : of 'land"ha ' s 'been given , and there' is 'no 'fraud and' unfairness -iirthe . cohduct , of the side; Confirination . Of ',it Will :not be . refttSed . b.h . .aedount of its being , at a groSSly . i, nad , equate -priee.." . Frye v. Street, 44 Ark..502; w:1099; Ann. Oas.. " 1914D, 1.1.; . Ifiw4o Dwvall, 47 Ark. 93, 14 S. w..469.. .
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.