Welch v. Hicks, 27 Ark. 292 (1871)

Dec. 1871 · Arkansas Supreme Court

27 Ark. 292

WELCH v. HICKS.

Courts— When proceedings presumed regular. — Where -the record is silent, er it is not otherwise made to appear, the regularity of the proceedings of the court below will be presumed. ,

Sales — When by order of court — Under the provisions of the Code, all sales, made by order of a court, should be on credit.

Vendor’s Lien — To enforce, what petition should allege. — A petition, to declara a vendor’s lien arid sale, should allege a conveyance or tender of conveyance before suit brought.

APPEAL PROM PRAIRIE CIRCUIT COURT.

IIon. John Whytock, Circuit Judge.

E. W. § E. Gantt, for Appellant.

First. The affidavit hy the attorney to the hill is not within the purview of Section 603 of -Code.

Second. The proof of publication fails to show who “ John* G. Price ” was, which was absolutely necessary. Saffold vs.. Saffold et al., *14 Ark., 408.

Third. There .was no attorney, appointed by the court, to-defend for the appellant, as required by law. Code, sec. 603,, Sub. Div. First*

Fourth. The court erred ’in decreeing a sale for cash. Code, Sec. 407.

English § English, and JBronaugh $ England, for'Appellee.

First. It is no valid objection to the hill, that it does not allege that appellee demanded the purchase money and tendered a deed before suit. Duncan vs. Clements, 17 Ark., 279; McDaniel vs. Chace, 15 Id., 488; Lewis vs. Davis, 21 Id. • Prewitt vs. Vaughan, 21 Id., 417.

Second. The objection, that the affidavit is defective, comes too late. Code, Sec. 159; Gould’s Digest, Sec. 13, Chap. 28, and Sec. 1, Chap. 8; Saffold vs. Saffold et al., 14 Ark.

Gregg, J.

The appellee sold the appellant certain lands in Prairie county, and received part payment and took a note for the remainder, and gave bond for title.

After tbe note fell due, be filed a bill to have bis vendor’s lien declared and tbe lands sold to pay tbe remainder of tbe purchase money.

The appellant made’default; a decree was rendered for.the .appellee, from which Welch appealed to this court, and he .assigns .as error that the bill was verified by the attorney’s .affidavit, and the publication of notice -by John G-. Price’s affidavit; that the court failed to appoint an attorney for the appellant, and rendered a decree of sale for cash in .hand.

To the first objection it is sufficient to say it comes too late in this court. Sec. 159, Civil Code.

If the court did not judicially know the journal made official by law, the record states that it appeared to the court "that the notice had been duly published; that would raise a sufficient presumption that that court had found the publication duly proved and defeat such objection here.; as a further '.answer, the Code does not prescribe the manner of- making proof of publication, and the law specifies in which it shall -he made, whiqh differs froih the former statute.

Where the record is silent, the presumption is that the -court below, or the clerk of that court, appointed for one constructively notified, and hence the third objection is valueless, unless the record affirmatively showed that no attorney was ¡appointed. Lastly it is urged that the court ordered the lands sold for cash, when they should have been sold on time. Under the head of “Judgments in general,” Sec. 405 of the Civil Code declares, “It shall not be necessary, in any action upon .a mortgage or lien, to enter an interlocutory judgment * * * but final judgment may be given in the first instance.” Sec. 406 declares; upon a foreclosure of.a mortgage, a sale shall be* «ordered. Sec. 407 declares, that “ Sales of personal property, made by order of court, shall be on a credit of three months; ¡sales of real property on a credit of not less than three nor .more than six months, or on installments equivalent to not more than four months credit; the whole to be .determined by the court,” etc. Sec. 408 declares, that “In an action on a mortgage or lien, the judgment may be rendered for the sale of the property and for the recovery of the debt against the defendant personally.” These provisions being enacted under the general head above stated, and Secs. 405 and 408 expressly embracing other liens as well as mortgages, and Sec. 407 declaring in general terms that sales of real property, made by order of court, shall •be on a credit, etc., we are of opinion the-legislature intended no exception to the rule, but that all sales, by order of court, should be on a credit. The petition, in this case, does not allege a conveyance or an offer to convey the land before suit brought, and the court are of opinion it falls within the ruling in the case of Wakefield vs. Johnson, Adm’r, 26 Ark., 506.

The decree of the court below is reversed, the cause remanded with directions to allow the plaintiff to amend his petition to show, an offer to convey before suit, and if he cannot so amend, that his petition be dismissed without prejudice.