{
  "id": 1669016,
  "name": "PLANTERS BANK & TRUST COMPANY v. William M. COLVIN, Helen COLVIN, Bert SULCER, Trustee, Curtis COLVIN, Earl GORE, RICE GROWERS BANK & BEN M. HOGAN CO., INC.",
  "name_abbreviation": "Planters Bank & Trust Co. v. Colvin",
  "decision_date": "1978-11-13",
  "docket_number": "78-63",
  "first_page": "582",
  "last_page": "587",
  "citations": [
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      "cite": "264 Ark. 582"
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      "cite": "572 S.W.2d 836"
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    "name": "Arkansas Supreme Court"
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      "cite": "192 S.W. 883",
      "category": "reporters:state_regional",
      "reporter": "S.W.",
      "year": 1917,
      "opinion_index": 0
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    {
      "cite": "127 Ark. 511",
      "category": "reporters:state",
      "reporter": "Ark.",
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    {
      "cite": "27 S.W. 2d 510",
      "category": "reporters:state_regional",
      "reporter": "S.W.2d",
      "year": 1930,
      "opinion_index": 0
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    {
      "cite": "181 Ark. 644",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        8724213
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      "year": 1930,
      "opinion_index": 0,
      "case_paths": [
        "/ark/181/0644-01"
      ]
    },
    {
      "cite": "346 S.W. 2d 204",
      "category": "reporters:state_regional",
      "reporter": "S.W.2d",
      "year": 1961,
      "opinion_index": 0
    },
    {
      "cite": "233 Ark. 586",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1691662
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      "year": 1961,
      "opinion_index": 0,
      "case_paths": [
        "/ark/233/0586-01"
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  "last_updated": "2023-07-14T18:22:41.361067+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Harris, C.J., and Fogleman and Byrd, JJ."
    ],
    "parties": [
      "PLANTERS BANK & TRUST COMPANY v. William M. COLVIN, Helen COLVIN, Bert SULCER, Trustee, Curtis COLVIN, Earl GORE, RICE GROWERS BANK & BEN M. HOGAN CO., INC."
    ],
    "opinions": [
      {
        "text": "Darrell Hickman, Justice.\nAll parties affected by an order of the St. Francis County Chancery Court setting aside a foreclosure decree, sale and confirmation of a sale have appealed from that order.\nThe Planters Bank and Trust Company of Forrest City filed an action to foreclose a mortgage on some land owned by William Colvin and his wife, Helen. The mortgage was on thirty-nine acres and was given as an extension and renewal of credit under another mortgage which was on forty acres. The Rice Growers Bank of Wheatley was joined in the suit as having a subsequent claim against the land by virtue of a circuit court judgment against William Colvin and Curtis Colvin for $30,211.77. The Colvins, who were personally served, did not answer the suit and the foreclosure was granted on their default. The Rice Growers Bank bought the land on a $35,000.00 bid at public sale and sold it to a third party.\nMore than ninety days after the foreclosure decree was entered, the Colvins sought to set aside the decree, sale and confirmation, or in the alternative require Rice Growers to pay into court the amount of its bid. The chancellor heard testimony and set aside the decree, sale and confirmation. The court made several findings but found no fraud on the part of Planters Bank and declared that Planters Bank would still have a lien on the forty acres.\nPlanters appeals alleging three errors: the chancellor erred in finding the Rice Growers judgment was not a valid judgment; the court should have granted a motion to strike Colvins\u2019 petition; and, the chancellor\u2019s findings are inconsistent with the order setting aside the sale.\nRice Growers only alleges that the court erroneously set aside the sale.\nThe Colvins argue that the chancellor erred in refusing to set aside Planters Bank judgment; and, at least Mrs. Colvin is entitled to one-half the proceeds of the sale after satisfaction of Planters\u2019judgment and the costs of the sale.\nWe find the chancellor erred in setting aside the foreclosure decree and sale. Only the confirmation of the sale should have been set aside.\nPlanters had loaned the Colvins money on a regular basis for some time and rather than pay off a note, the Colvins would leave $10.00 or so due to avoid legal expenses every time they needed a new loan.\nAs the Colvins and Planters Bank were negotiating to consolidate Colvin\u2019s debts, it was discovered that Rice Growers Bank had a $30,211.77 judgment against William Colvin and Curtis Colvin in circuit court. Planters decided not to loan Colvin any more money nor renew his notes. Colvin had several other notes with Planters on personal property which were included in the complaint.\nPlanters filed suit on four notes which were secured by two separate deeds of trust; one deed of trust, dated July 26, 1971, goes to the entire forty acre tract of land (the deed of trust kept \u201copen\u201d by Colvin); and one deed of trust, which was dated April 16, 1976, excepted one acre from the forty acres. There was a dwelling house located on this one acre tract but it was not a homestead of Colvins.\nIn Planters\u2019 complaint, Rice Growers Bank was alleged to have a circuit court judgment, as described herein, the basis of which was alleged to be a note signed by William Colvin and his wife, Helen, covering thirty-nine acres. The Colvins did not file an answer to the foreclosure complaint. They were not served a copy of Rice Growers\u2019 pleading. Notice was published three times in the local newspaper as required by law. Mr. Colvin said he read them. An order was entered by the Court permitting the land to be offered for sale several ways: First, thirty-nine acres, and then one acre, and then the entire forty acres; the greater bid to be accepted. A commissioner was appointed and a public sale was held which neither of the Colvins attended.\nRice Growers bid the greater amount, $35,000.00, for the entire forty acres, and received a commissioner\u2019s deed to the forty acres. Rice Growers did not pay to the commissioner $35,000.00 but instead only paid enough to satisfy Planters\u2019judgment and the costs, a total of $10,363.93.\nRice Growers subsequently sold the land to a person who is not a party to this litigation.\nThe chancellor approved the sale and the commissioner\u2019s deed.\nThe Colvins filed a petition to set aside the decree, sale and foreclosure alleging that fraud was committed when their one acre was sold. There was also an allegation questioning the validity of the Rice Growers\u2019judgment.\nThe chancellor heard testimony and correctly decided that since ninety days had expired from when the decree was entered, fraud or unavoidable casualty must be alleged and proved. Ark. Stat. Ann. \u00a7\u00a7 29-506 and 508. A meritorious defense must also be shown. Haville v. Pearrow, 233 Ark. 586, 346 S.W. 2d 204 (1961).\nThe court, in setting aside the decree, found:\n. . . that no actual fraud was practiced upon either Mr. or Mrs. Colvin by Planters. Actually, both Planters and Rice Growers tried to work with Colvin in finding a way out of his difficulties. But in doing so they may well have led both him and her to believe that the one acre would not be involved in the sale.....\nIn other words, the court did not actually find fraud.\nThe court found that Rice Growers\u2019judgment was \u201cimproperly obtained\u201d and, therefore, the sale could not be valid. Consequently, the court decided to set the entire matter aside, with the exception of the judgment of Planters, because the matter was \u201cso inter-twined that it could not be separated.\u201d\nThis was not appropriate since no fraud or unavoidable casualty was found. Ark. Stat. Ann. \u00a7 29-506. The decree should have been permitted to stand. Free v. Harris, 181 Ark. 644, 27 S.W. 2d 510 (1930). The problem lies only with Rice Growers\u2019judgment, its bid and the confirmation of the sale.\nRice Growers\u2019 circuit court judgment was against only William Colvin\u2019s interest and not that of his wife; it could only be a lien against William Colvin\u2019s interest in the land. Ark. Stat. Ann. \u00a7 29-130; Howes v. King, Admr., 127 Ark. 511, 192 S.W. 883 (1917). Rice Growers had a deed of trust on thirty-nine of the forty acres involved but it was not signed by Helen Colvin. Therefore, it is obvious that Rice Growers\u2019 judgment could not be a valid lien against any of Helen Colvin\u2019s interest in the forty acres. It was, therefore, not a valid lien which could be used to foreclose Helen Colvin\u2019s interest in the land in this action. Planters was correctly found to have a valid lien on all the forty acres and, therefore, the foreclosure was in order, and the sale was in order. Planters\u2019 interest should not be disturbed. It simply becomes a matter of disposing of the troublesome problems raised by Rice Growers\u2019 failure to pay to the commissioner the full bid of $35,000.00 and the disposition of the proceeds.\nThe matter may be resolved by the court by simply setting aside the confirmation and requiring Rice Growers and the commissioner to account to the court for the amount bid and dispose of that amount according to the law and equity. This is the only reasonable resolution of the matter since there was no finding by the court of wrongdoing on the part of Planters, and since the ultimate purchaser of the property is not a party to this lawsuit.\nTherefore, we find that Planters \u2019 arguments have merit to the degree that we have expressed herein and that the Colvins\u2019 argument has merit to the degree that Mrs. Colvin\u2019s interest could not be foreclosed by Rice Growers at this sale. We find no merit to any other arguments raised on appeal.\nTherefore, this case is remanded to the chancery court with instructions to set aside only the confirmation of sale entered herein and retain as parties to the litigation Rice Growers Bank, the commissioner and the Colvins for a fair and equitable disposition of the proceeds.\nAffirmed in part, reversed in part.\nWe agree.\nHarris, C.J., and Fogleman and Byrd, JJ.\nMrs. Colvin disputed this fact and the notes in question were marked \u201cpaid.\u201d The Planters Bank\u2019s ledger card showed a $10.00 balance on the 1971 note.",
        "type": "majority",
        "author": "Darrell Hickman, Justice."
      }
    ],
    "attorneys": [
      "Dane & Felton, Ltd., by: Dan Dane, and Daggett, Daggett & Van Dover, by: Jimason J. Daggett, for appellants.",
      "Sharpe & Morledge, P.A., for appellees."
    ],
    "corrections": "",
    "head_matter": "PLANTERS BANK & TRUST COMPANY v. William M. COLVIN, Helen COLVIN, Bert SULCER, Trustee, Curtis COLVIN, Earl GORE, RICE GROWERS BANK & BEN M. HOGAN CO., INC.\n78-63\n572 S.W. 2d 836\nOpinion delivered November 13, 1978\n(Division II)\nDane & Felton, Ltd., by: Dan Dane, and Daggett, Daggett & Van Dover, by: Jimason J. Daggett, for appellants.\nSharpe & Morledge, P.A., for appellees."
  },
  "file_name": "0582-01",
  "first_page_order": 610,
  "last_page_order": 615
}