{ "id": 1578607, "name": "Fulbright v. Morton, Sheriff", "name_abbreviation": "Fulbright v. Morton", "decision_date": "1917-12-17", "docket_number": "", "first_page": "492", "last_page": "500", "citations": [ { "type": "official", "cite": "131 Ark. 492" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "14 Ark. 9", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1862633 ], "opinion_index": -1, "case_paths": [ "/ark/14/0009-01" ] }, { "cite": "115 Ga. 53", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 413031 ], "opinion_index": -1, "case_paths": [ "/ga/115/0053-01" ] }, { "cite": "10 Ark. 541", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8727906 ], "opinion_index": -1, "case_paths": [ "/ark/10/0541-01" ] }, { "cite": "131 Cal. 681", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 1977705 ], "opinion_index": -1, "case_paths": [ "/cal/131/0681-01" ] }, { "cite": "8 Ala. 153", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 8496248 ], "opinion_index": -1, "case_paths": [ "/ala/8/0153-01" ] }, { "cite": "226 Pa. 552", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 967823 ], "opinion_index": -1, "case_paths": [ "/pa/226/0552-01" ] }, { "cite": "53 Ark. 137", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1911673 ], "opinion_index": -1, "case_paths": [ "/ark/53/0137-01" ] }, { "cite": "31 Ark. 258", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "126 Ga. 274", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 446497 ], "opinion_index": -1, "case_paths": [ "/ga/126/0274-01" ] }, { "cite": "46 So. 769", "category": "reporters:state_regional", "reporter": "So.", "case_ids": [ 8491037 ], "opinion_index": -1, "case_paths": [ "/ala/155/0498-01" ] }, { "cite": "98 N. E. 380", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": -1 }, { "cite": "126 Pac. 66", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": -1 }, { "cite": "14 Ark. 20", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "43 Am. Dec. 528", "category": "reporters:federal", "reporter": "Am. Dec.", "opinion_index": -1 }, { "cite": "11 Paige 231", "category": "reporters:state", "reporter": "Paige Ch.", "opinion_index": -1 }, { "cite": "26 Am. Dec. 254", "category": "reporters:federal", "reporter": "Am. Dec.", "weight": 2, "opinion_index": -1 }, { "cite": "21 Ark. 231", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1868312 ], "opinion_index": -1, "case_paths": [ "/ark/21/0231-01" ] }, { "cite": "49 Iowa 296", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 2327904 ], "opinion_index": -1, "case_paths": [ "/iowa/49/0296-01" ] }, { "cite": "22 Am. Dec. 322", "category": "reporters:federal", "reporter": "Am. Dec.", "opinion_index": -1 }, { "cite": "11 Minn. 200", "category": "reporters:state", "reporter": "Minn.", "opinion_index": -1 }, { "cite": "9 Pac. 613", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": -1 }, { "cite": "11 Am. Dec. 691", "category": "reporters:federal", "reporter": "Am. Dec.", "opinion_index": -1 }, { "cite": "35 Am. Dec. 575", "category": "reporters:federal", "reporter": "Am. Dec.", "weight": 2, "opinion_index": -1 }, { "cite": "122 N. Y. 1037", "category": "reporters:state", "reporter": "N.Y.", "opinion_index": -1 }, { "cite": "79 S. W. 132", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "101 Pac. 425", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": -1 }, { "cite": "30 Ark. 32", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "128 Ark. 76", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1581933 ], "opinion_index": -1, "case_paths": [ "/ark/128/0076-01" ] }, { "cite": "61 Ark. 66", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1902346 ], "opinion_index": -1, "case_paths": [ "/ark/61/0066-01" ] }, { "cite": "41 Am. Dec. 47", "category": "reporters:federal", "reporter": "Am. Dec.", "opinion_index": -1 }, { "cite": "15 Ark. 615", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "90 Fed. 622", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 6752528 ], "opinion_index": -1, "case_paths": [ "/f/90/0622-01" ] }, { "cite": "19 Wall. 238", "category": "reporters:scotus_early", "reporter": "Wall.", "opinion_index": -1 }, { "cite": "30 Ark. 612", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1881115 ], "opinion_index": -1, "case_paths": [ "/ark/30/0612-01" ] }, { "cite": "19 Barb. 558", "category": "reporters:state", "reporter": "Barb.", "opinion_index": -1 }, { "cite": "5 Mich. 151", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1928368 ], "opinion_index": -1, "case_paths": [ "/mich/5/0151-01" ] }, { "cite": "85 Ark. 232", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1523372 ], "opinion_index": -1, "case_paths": [ "/ark/85/0232-01" ] }, { "cite": "20 Pac. 629", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": -1 }, { "cite": "78 Ala. 258", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 5570252 ], "opinion_index": -1, "case_paths": [ "/ala/78/0258-01" ] }, { "cite": "7 Ga. 167", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 580079 ], "opinion_index": -1, "case_paths": [ "/ga/7/0167-01" ] }, { "cite": "92 Ind. 514", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1345472 ], "opinion_index": -1, "case_paths": [ "/ind/92/0514-01" ] }, { "cite": "67 N. C. 261", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2092706 ], "opinion_index": -1, "case_paths": [ "/nc/67/0261-01" ] }, { "cite": "113 Fed. 232", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 3710838 ], "opinion_index": -1, "case_paths": [ "/f/113/0232-01" ] }, { "cite": "4 Wall. 435", "category": "reporters:scotus_early", "reporter": "Wall.", "case_ids": [ 6140652 ], "opinion_index": -1, "case_paths": [ "/us/71/0435-01" ] }, { "cite": "14 Ark. 120", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "15 Ark. 611", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8728553 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ark/15/0611-01" ] }, { "cite": "4 Munf. 262", "category": "reporters:state", "reporter": "Munf.", "case_ids": [ 4441682 ], "opinion_index": -1, "case_paths": [ "/va/18/0116-03" ] }, { "cite": "24 S. E. 114", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": -1 }, { "cite": "46 Iowa 49", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 2332905 ], "opinion_index": -1, "case_paths": [ "/iowa/46/0049-01" ] }, { "cite": "9 Ark. 270", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8727295 ], "weight": 2, "pin_cites": [ { "page": "286" } ], "opinion_index": -1, "case_paths": [ "/ark/9/0270-01" ] }, { "cite": "14 Ark. 114", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1862714 ], "opinion_index": 0, "case_paths": [ "/ark/14/0114-01" ] }, { "cite": "70 Am. Dec. 380", "category": "reporters:federal", "reporter": "Am. Dec.", "opinion_index": 0 }, { "cite": "20 Tex. 171", "category": "reporters:state", "reporter": "Tex.", "case_ids": [ 2121282 ], "opinion_index": 0, "case_paths": [ "/tex/20/0171-01" ] }, { "cite": "11 Minn. 220", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 558703 ], "opinion_index": 0, "case_paths": [ "/minn/11/0220-01" ] }, { "cite": "121 Ark. 302", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1559378 ], "opinion_index": 0, "case_paths": [ "/ark/121/0302-01" ] }, { "cite": "14 Ark. 9", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1862633 ], "opinion_index": 0, "case_paths": [ "/ark/14/0009-01" ] }, { "cite": "11 Am. Dec. 691", "category": "reporters:federal", "reporter": "Am. Dec.", "opinion_index": 0 }, { "cite": "128 Ark. 76", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1581933 ], "opinion_index": 0, "case_paths": [ "/ark/128/0076-01" ] }, { "cite": "15 Ark. 611", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8728553 ], "opinion_index": 0, "case_paths": [ "/ark/15/0611-01" ] } ], "analysis": { "cardinality": 801, "char_count": 18281, "ocr_confidence": 0.528, "pagerank": { "raw": 1.4486883683313813e-07, "percentile": 0.654621176755865 }, "sha256": "89f2d8746009f1f56e762d5ab0daad2fe5b5822d4091698314014e6247d5b8df", "simhash": "1:ef27bd56702ba480", "word_count": 3298 }, "last_updated": "2023-07-14T19:45:44.682087+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Humphreys, J., not participating." ], "parties": [ "Fulbright v. Morton, Sheriff." ], "opinions": [ { "text": "McCULLOCH, C. J.\n(1) The Arkansas National Bank, a banking corporation engaged in business at Fayetteville, Arkansas, appellant Fulbright being president and managing officer, sued W. L. Stuckey in the chancery court of Washington County, and a decree was rendered in its favor against Stuckey for recovery of a debt due on contract. The Mcllroy Banking Company, another hanking corporation, was made party defendant in the action for the purpose of compelling the latter to foreclose its lien on certain property pledged by Stuckey so that the surplus proceeds could be applied on the debt due from Stuckey to the Arkansas National Bank. Certain credits were allowed to Stuckey over the objections of the bank, and the decree in the bank\u2019s favor was for the balance of the debt after allowing those credits. Both of the parties, Stuckey and the Arkansas National Bank, appealed to this court .and the decree was reversed on the appeal of the bank and the cause was remanded with directions to the chancery court to enter a decree in favor of the bank for an amount in excess of the amount of the original decree of that court. Arkansas National Bank v. Stuckey, 121 Ark. 302. After the rendition of the first decree in the chancery court, and while the case was pending here on appeal, the chancery court rendered a decree in favor of Mcllroy Banking Company against Stuckey for the recovery of the amount of its debt and for foreclosure of the lien on Stuckey\u2019s property. The pledged property was sold in accordance with the decree and the amount of proceeds was credited, leaving a balance of $2,498.82 due Mcllroy Banking Company on the personal decree in its favor against Stuckey. On the remand of the original cause to the chancery court the Arkansas National Bank insisted that the decree rendered in its favor in accordance with the directions of this court should be declared to be prior in point of time and superior to the decree in favor of Mcllroy Banking Company as a lien on Stuckey\u2019s unincumbered property, but the court decided to the contrary and the Arkansas National Bank again appealed to this court, where it was decided that the prior lien of the first decree was not displaced by the remand of the cause with directions to enter another decree for the amount due. 128 Ark. 76. While the second appeal was pending in this court, Mcllroy Banking Company sued out an execution on the decree against Stuckey for the balance due after crediting the proceeds of the pledged property and the sheriff levied the execution on a piece of real estate owned by Stuckey in the City of Fayetteville and sold the same on execution at public outcry to appellant, who was the highest bidder. The sum of $1,800 was the price bid by appellant.\nAfter the property was knocked off to appellant by the selling officer he agreed to execute the next day a note for the purchase price in accordance with the terms of the sale, but when requested by the sheriff to do so the next day, he declined. Appellant based his refusal to make good his bid on the ground that he had made the bid upon faith of representations of an agent of the Mcllroy Banking Company that the execution lien of that bank was a superior one and that he had since been advised that the lien of the Arkansas National Bank under its decree against Stuckey was superior. Appellee as .sheriff tendered a certificate of purchase which was refused by appellant and at the expiration of the statutory term of credit .allowed on such sales, appellee sued to recover the amount of the bid. Appellant defended in the court below on the ground stated above for his refusal to make good his bid, and also on the ground that the sheriff could not maintain an action on the bid without reselling the property in accordance with the statute, which provides that when a bidder at an execution sale \u201cshall refuse to pay the amount bid for any property struck off to him the officer making the sale may again sell such property to the highest bidder, and if any loss shall be occasioned thereby, the officer may recover such loss by motion before any court or justice of the peace.\u201d Kirby\u2019s Digest, \u00a7 3283. Appellant also contended that the decree in favor of Mcllroy Banking Company was not for a personal recovery against Stuckey, but only constituted an ascertainment of the amount due for enforcing a lien on 'the pledged property. There was a trial before a jury, but upon the evidence adduced the trial court directed a verdict against appellant and an appeal has been prosecuted from the judgment rendered. The decree upon which the execution was issued reads as follows, (omitting caption and formal recitals):\n\u201cIt is therefore, by the court ordered, adjudged and decreed that the said Mcllroy Banking Company do have and recover of and from the said W. L. Stuckey, the sum of $7,375.64, interest and all its costs in this action, and that if the judgment, interest and costs be not paid and fully discharged within ten days from its date, the commissioner of this court is hereby ordered and directed to proceed to sell for cash at public sale at the west front door of the courthouse in the City of Fayetteville, Washington County, Arkansas, after advertising said sale for four weeks in a newspaper published in Washington County, Arkansas, all of said stock in the said White Lime Company so pledged and delivered by the said W. L. Stuckey to the said Mcllroy Banking Company and if said stock should not sell for a. sum sufficient to pay said judgment in favor of the said Mcllroy Banking Company, that the said Mcllroy Banking Company have personal judgment against the said W. L. Stuckey for the satisfaction thereof, and if said stock should sell for a sum in excess of the judgment herein rendered in favor of the said Mcllroy Banking Company, interest and cost, then the clerk of this court is ordered to hold the excess subject to the further orders of this court.\u201d\nIt is contended that this did not constitute a personal decree against Stuckey, but merely ascertained the amount due and directed a sale of pledged property for the purpose of crediting the proceeds on the amount due and reserved for future action the. question of rendering a personal decree. This seems to us a strained construction of the language of the decree, which was obviously intended as a personal one against Stuckey for the recovery of the amount due, with instructions to sell the pledged property and credit the proceeds. It is in the customary form in which such, decrees are rendered and we entertain no donbt that the proper interpretation of the language used is to treat it as a final decree for the recovery of the amount named.\n(2-3) The main question of law involved in the case is whether or not the statutory remedy against a purchaser at an execution sale who refuses to comply with his bid is the exclusive remedy at law and completely supersedes the common-law remedy which a selling officer had of maintaining an action against the purchaser for the full amount of his bid. It seems to have been well settled at common law that a selling officer could maintain an action against the purchaser for the amount of the bid upon the latter\u2019s refusal to comply with the terms of the sale. Murfree on Sheriffs, \u00a7 897; 25 Am. & Eng. Enc. of Law, p. 838; 17 Cyc., p. 1259; Freeman on Executions, \u00a7 313; Armstrong v. Vroman, 11 Minn. 220; Friedly v. Scheets (Pa.), 11 Am. Dec. 691.\nIt is insisted that the word \u201cmay\u201d in the statute should be construed to mean \u201cshall\u201d so as to render the statute mandatory and make it exclusive of all other remedies against a delinquent bidder. Such a construction of the word used is often employed by courts so as to carry out the obvious meaning of the law-makers, but that construction is usually adopted in cases where a new right, as well as a remedy, is created. 2 Lewis \u2019 Sutherland Statutory Construction, \u00a7 720. The learned author just referred to states the rule as follows:\n\u201cWhere a new remedy is given by statute and there are no negative words or other provisions making it exclusive, it will be deemed to be cumulative only and not to take away prior remedies.\u201d\nThe statute under consideration merely confers a new remedy, but does not create the right to compel the purchaser to comply with his bid, for that right existed independently of the statute, and we' think that it still exists in its original form. The statutory remedy is cumulative. Dawson v. Miller, Admr., 20 Tex. 171, 70 Am. Dec. 380.\nCounsel for appellant insist that the contrary rule with reference to the construction of this statute has been adopted by this court in the following cases: State, use Jones, etc., v. Borden, 15 Ark. 611; Newton v. The State Bank, 14 Ark. 9; State v. Lawson, Sheriff, 14 Ark. 114. We do not construe those decisions as holding that the statute in question is exclusive of the common-law remedy, for the effect of the court\u2019s decisions in those cases was merely to hold that the selling officer was not responsible for the amount of the bid unless it was paid, as the statute prescribed another remedy which he had a right to adopt.\nThe statute of frauds is pleaded in this case, but it has been very generally held, as shown by the cases cited on the brief of appellee, that the return of the selling officer is sufficient memorandum of the sale to take the transaction out of the operation of the statute of frauds.\n(4-5) The next contention of appellant is that the court erred in refusing to permit him to prove at the trial that the agents of Mcllroy Banking Company instructed the sheriff to make the sale under the execution as a lien superior to all others, and that the sale was in fact made under the claim on the part of the agents of Mcllroy Banking Company that the execution in favor of that bank constituted a superior lien. It is argued that since this court has held that the lien of the Arkansas National Bank under its original decree was not displaced by the remand ordered by this court that the assertion of superiority of lien by the Mcllroy Banking Company constituted either a fraud upon appellant as a bidder or that it constituted a mistake under which appellant labored when he made the bid, which justified him in withdrawing his bid upon discovering the error. This argument is unsound for the reason that the rule of caveat emptor applies to execution sales and the mere assertion of superiority of liens by the agents of the Mcllroy Banking Company constituted neither a misrepresentation of fact nor such a mutual mistake of fact as would afford relief to appellant from the bid. No contractual rights arose between appellant and the Mcllroy Banking Company for they dealt at arms length as adversaries in the assertion of superior liens against the property of Stuckey. If both parties to the controversy asserted their respective claims in good faith and appellant purchased the property under the belief that as a matter of law the lien, of the Mcllroy Banking Company was superior, yet the mutual mistake as to the law on the subject can not, under the circumstances of this case, be treated as such a mistake of fact as will relieve appellant from his obligation. There was, in other words, no mistake of fact, but merely a mistake of law, in the view of the matter most favorable to appellant. The offered evidence was therefore, immaterial, and the court was correct in excluding it.\n(6) The remaining contention is that the sheriff can not maintain the action because the form of note or bond presented to appellant to sign in furtherance of his bid specified interest at eight per centum per annum. The statute (Kirby\u2019s Digest, \u00a7 3281), provides that sales under execution shall be on credit of three months, and that the purchaser must give bond with security \u201cfor the payment of the sale money, bearing interest from date.\u201d This means the legal rate of interest, or six per centum per annum, and the sheriff had no right to demand a note bearing interest at the rate of eight per centum. Appellant did not, however, base his refusal to sign the note upon that ground, and there is no indication that the sheriff intended to violate the statute, but the inclusion of interest at the rate of eight per centum was a mistake which did not avoid the sale, nor prevent the sheriff from enforcing the remedy to compel appellant to comply with his bid.\nThe judgment is correct upon the undisputed testimony in the case, and the same is affirmed.\nHumphreys, J., not participating.", "type": "majority", "author": "McCULLOCH, C. J." } ], "attorneys": [ "O. P. McDonald and B. R. Davidson, for appellant.", "H. L. Pearson, for appellee." ], "corrections": "", "head_matter": "Fulbright v. Morton, Sheriff.\nOpinion delivered December 17, 1917.\n1. Appeal and error \u2014 decree in chancery \u2014 personal judgment.\u2014 A decree in chancery recited that: \u201cIt is * * * adjudged and decreed that the said M. Banking Co. do have and recover of and from the said W. L. Stuckey, the sum of $7,375.64, interest and all its costs in this action, and that if the judgment, interest and costs he not paid and fully discharged within ten days from its date * * Held, the decree was intended as a personal judgment against Stuckey, and a final decree for the recovery of the amount named.\n2. Execution sales \u2014 statute op frauds \u2014 return of selling officer. \u2014 The return of the selling officer is a sufficient memorandum of sale to take an execution sale out of the operation of the statute of frauds.\n3. Execution sales \u2014 failure of purchaser to complete the purchase \u2014 remedy of selling officer. \u2014 The statutory remedy against a purchaser at an execution sale who refuses to comply with his bid (Kirby\u2019s Digest, \u00a7 3283), does not supersede the common law remedy which a selling officer had of maintaining an action against the purchaser for the full amount of his bid.\n4. Execution sales \u2014 caveat emptor \u2014 representations of lien holder. \u2014 The rule of caveat emptor applies to execution sales.\n5. Execution sales \u2014 representation of lien holder. \u2014 The T. Co. having a lien upon certain property, caused the same to be sold on execution, alleging its lien to be superior to any other; this was not true; and held, the purchaser at the execution sale could not repudiate the sale upon that ground.\n6. Execution sales \u2014 credit\u2014rate of interest. \u2014 Under Kirby\u2019s Digest, \u00a7 3281, where a credit is allowed on an execution sale, interest at the rate of 6 per cent, only can be charged on the deferred payment; but the sale is not avoided where the selling officer undertook to charge 8 per cent, interest, where the purchaser did not base his refusal to^ complete the purchase on that ground.\nAppeal from 'Washington Circuit Court; J. 8. Maples, Judge;\naffirmed.\nO. P. McDonald and B. R. Davidson, for appellant.\n1. Th\u00e9re was no personal decree against Stuckey and hence the ven eao was irregular and there was no sale. A personal judgment was withheld until after the sale of the pledged stock. The decree should be construed so as to give effect to all of its language, according to its plain obvious and common sense. 9 Ark. 270; 24 Id. 286; Goolsby v. Fwlbright, ms. op.; 46 Iowa 49; 24 S. E. 114; 4 Munf. 262.\n2. Tbe sale was never perfected. Tbe law was not complied with. The sale should have been for cash. Kirby\u2019s Digest, \u00a7 \u00a7 3281, 3279.\nThe officer demanded a note with 8 per cent, interest. The legal rate is 6 per cent. No certificate of purchase was issued or tendered. There was no sale. 15 Ark. 611-615.\n3. The statute is highly penal and the sheriff must strictly comply with the law. The property should have been re-offered for sale. 14 Ark. 120-121; Kirby\u2019s Digest, \u00a7 3283. The word \u201cmay\u201d is mandatory. Freeman on Ex., \u00a7 301; 15 Ark. 611; 14 Id. 1,114-120; 4 Wall. 435; 113 Fed. 232; 67 N. C. 261;'92 Ind. 514; 7 Ga. 167; 78 Ala. 258; 20 Pac. 629; 85 Ark. 232; 77 Id. 417; etc.\nA statute is never to be regarded as directory merely when the act required, or the omission works injury or advantage to any one affected by it. 4 M. Law 213; 5 Mich. 151; 19 Barb. 558; Black on Tax Titles 305-311;; 30 Ark. 612; 19 Wall. 238; 22 Id. 98; 90 Fed. 622.\n4. The sale was within the statute of frauds. Kirby\u2019s Digest, \u00a7 3279; 20 Cyc. 235.\n5. There never was a sale. 15 Ark. 615; 14 Id. 20; 21 Id. 231; 41 Am. Dec. 47.\n6. It was error to refuse to permit appellant to prove that the agents of Mcllroy Banking Co. instructed the sheriff to make sale under the execution as a lien superior to all others. 61 Ark. 66-70; 32 Id. 321.\nH. L. Pearson, for appellee.\nI. There was a personal judgment against Stuckey. 128 Ark. 76.\n2. This suit was not brought under the statute but under our common law remedy. The word \u201cmay\u201d is not mandatory but permissive. The statutory remedy is not exclusive. 30 Ark. 32; 101 Pac. 425; 79 S. W. 132; 122 N. Y. 1037; 35 Am. Dec. 575; 7 A. & E. Ann. Cas. 1069; 25 A. & E. Ene. L. (2 Ed.) 840-772; Lewis Sutherland Stat. Const. (2 Ed.), Yol. 2, p. 720, 363; 35 Am. Dec. 575; 17 Cyc. 1259; 11 Am. Dec. 691; 65 Am. St. 339; 17 Cyc. 1259; 9 Pac. 613; 11 Minn. 200; etc. A purchaser can not withdraw his bid after the officer has .accepted it. Freeman on Ex., \u00a7 300; 22 Am. Dec. 322; 43 Id. 528; 49 Iowa 296.\n3. The case does not fall within the statute of frauds. 21 Ark. 231; 15 Id. 615; 25 A. & E. Ene. L. (2 Ed.) 838. The statute does not apply to judicial or execution sales. 26 Am. Dec. 254. But the return of the sheriff satisfies the statute. 11 Paige 231; 43 Am. Dec. 528; 22 Id. 322; Freeman on Ex., \u00a7 299; 25 A. & E. Enc. Law, (2 Ed.) 774, note 9; 14 Ark. 20; 15 Id. 615; 21 Id. 231; 5 Yerger 63; 26 Am. Dec. 254; 126 Pac. 66; 98 N. E. 380. See also, 64 Am. St. 725; 64 Id. 725; 46 So. 769; 126 Ga. 274.\n4. The doctrine of caveat emptor applies to execution sales. Freeman on Ex., \u00a7 355; 25 Am. & E. Ene. L. 843, note 6; 17 Cyc. 1262-3; 31 Ark. 258; 10 Id. 211; 30 Id. 249; 31 Id. 252; 53 Ark. 137; 31 Id. 108; 54 Id. 457; 226 Pa. 552; 8 Ala. 153; 131 Cal. 681; 25 Am. St. 758; etc.\n5. Mere irregularities do not vitiate a sale. 10 Ark. 541; 12 Id. 421; 19 Id. 297; 34 Id. 399; 17 Cyc. 1265, note 22. Demanding 8 per cent, interest was immaterial. It was a mistake. But appellant did not refuse on this ground. He should have tendered his bid with 6 per cent, interest.\n6. No error in excluding the testimony that the Mcllroy lien was superior to all others. 115 Ga. 53; Freeman on Ex., \u00a7 310; 17 Cyc. 1282-4; 14 Ark. 9." }, "file_name": "0492-01", "first_page_order": 516, "last_page_order": 524 }