85 Ark. 144 | Ark. | 1907
Lead Opinion
This is the fifth time the estate of Samuel Dickens, deceased, has been involved in suits before this court.
Dickens died intestate on the second day of March, 18.67. W. D. Jacoway administered on his estate, filed an inventory, and made settlements, respectively, on the 19th of May, 1868, on the 7th of July, 1869, on the 14th of April, 1870, and the 5th of July, 1871, all of which were approved and confirmed. Subsequently, on the 15th of April, 1875, he filed a fifth settlement, in lieu of the four former ones; purporting to render an account and statement of his administration down to that time from the beginning, which was also duly approved and confirmed. In this settlement the administrator showed that there was money in his hands sufficient to pay 39 cents and 8 mills on all claims allowed against the estate in the fourth class. The probate court made an order directing the administrator to pay that amount on -such claims. Under this order the administrator paid to most of the creditors that proportion of their claims, and took from them receipts in full of all claims against the estate. Two of the creditors, Mrs. J. A. Johnston and A. J. Dyer, refused to accept the amount offered in fuh settlement of their claims, and for that reason they were not paid. They, in behalf of themselves and other creditors of the estate, brought suit in 1878 in the Yell' Circuit Court, in .equity, against Jacoway and the following sureties on his administrator’s bond; R. P. Parks, Jacob Graves, Hiram Dacus, Joseph Gantt, Reuben E. Cole, as administrator of the estate of J. M. Cole, a surety, who had died since the execution of the bond, and Josiah Hawkins, as administrator of the estate of L. T. Brown, another surety who had died. The object of the suit was to set aside the settlements made by Jacoway in the probate court, to restate his accounts, and to hold the sureties liable. A demurrer to the complaint for want of equity was sustained, whereupon plaintiffs rested. The complaint was dismissed, and they appealed. On appeal the demurrer was overruled, and the cause was remanded for further proceedings. The cause then proceeded to a final hearing,' and was heard upon its merits.
The settlements were held to be fraudulent in many respects, and were restated by the circuit court; and the defendants excepted and appealed to this court. On appeal many of the allegations of fraud were sustained, and others were overruled. The decree was reversed, and the ■ cause was remanded with directions to the court to surcharge and falsify the settlements of Jacoway in accordance with the opinion of the court.This suit resulted in charging the administrator with additional items, amounting in the aggregate to over five hundred dollars. We failed to find when this suit was dismissed or abated as to any of the sureties or their representatives.
After the administration of Dickens’s estate . was returned to the probate court, the administrator filed in that court what is called his seventh and final settlement, and creditors filed exceptions to the same. An appeal from the judgment of the probate court as to the exceptions was taken to the circuit court, and from the judgment of the circuit court an appeal was taken to this court. The judgment of the circuit court was reversed, and the clerk of this court was directed to state the account of the administrator in accordance with the opinion of this court, which he did, and found the administrator indebted to the estate on the 15th of April, 1875, in the sum of $2,350.32 and six per cent, per annum interest thereon from that date. This statement of the account was approved, and in March, 1900, this court adjudged “that W. D. Jacoway, administrator of the estate of Samuel Dickens, deceased, is due said estate, and is hereby chargeable and charged with, and ordered to pay over to the parties entitled thereto, said sum of twenty-three hundred and fifty and 32.100 dollars as of April 15, 1875, said sum to bear interest at six per cent, per annum from said date until paid;” and remanded the cause to the Yell Circuit Court for further proceedings to be therein had according to law and the opinion of this court.
In pursuance of the mandate of this court, the Yell Circuit Court, on the 27th day of August, 1900, rendered the following judgment: “It is considered and adjudged by this court that the defendant, W. D. Jacoway, is due the estate of Samuel Dickens the sum of twenty-three hundred and fifty dollars and thirty-two cents ($2,350.32), as of April 15, 1875, said sum to bear interest at six per cent, per annum from said date till paid. And, it appearing to the court that this judgment is based upon the final account current of said W. D. Jacoway, as administrator of said estate of Samuel Dickens,, that said ■estate has been fulfy administered and all the assets due said estate have been collected by the defendant herein, and that plaintiffs own the only valid claims against said estate that re-, main unpaid, and it appearing that the amount of the indebtedness of said W. D. Jacoway to the estate of Samuel Dickens, deceased, after all just credits'are allowed him, is now the sum of thirty-one hundred and eight dollars and thirty cents, and that of this sum the amount of twenty-nine hundred and eighty-six dollars and forty cents is due the estate of Isabella A. Johnston, and the sum of one hundred and twenty-one dollars and ninety cents is due the plaintiff, A. J. Dyer; it is therefore ordered and adjudged that the plaintiff, L. C. Hall, as administrator of the estate of Isabella A. Johnston; do have and recover from the defendant, W. D. Jacoway, as administrator of the estate of Samuel Dickens, said sum of twenty-nine hundred and eighty-six dollars and forty cents, and that plaintiff, A. J. Dyer, do have and recover of and from the said W. D. Jacoway, as administrator of said estate, the sum of one hundred and twenty-one and 90-100 dollars, and that both plaintiffs recover all their costs in the Supreme Court and this court ■expended, etc.”
On the 19th day of October, 1900, D. C. Hall, as adminisrator de bonis non of Isabella A. Johnston, deceased, and Andrew J. Dyer brought suit in the Yell Chancery Court of the Danville District of Yell County against R. E. Cole, P. G. Blevins, and Dizzie Blevins, heirs of J. M. Cole, and Thomas Parks, heir of R. P. Parks, to make their unpaid claims a charge against certain lands, owned by the sureties R. P. Parks and J. M. Cole in their lifetime and descended to the defendants. They alleged in their complaint that Samuel' Dickens departed this life on-the second day of March, 1867; that W. D. Jacoway. was, on the 16th day of March, 1867, duly appointed his administrator and gave bond, conditioned as provided by law, for the faithful performance of his duties as such administrator, with Jas. M. Cole and Robert P. Parks, and others as his sureties; that the estate of Samuel Dickens, deceased, the said W. D. Jacoway and the sureties on his bond as administrator of said estate, whose estates have not been administered upon and finally settled, are insolvent, and plaintiffs are the only creditors of said estate;” that James M. Cole departed this life about the 29th day of February, 1872, leaving surviving him the defendants Reuben E. Cole and Lizzie Blevins, wife of the defendant P. G. Blevins, his only heirs; that Reuben E. Cole was, on the 4th day of April, 1872, appointed administrator of his estate, which has long since been, towit, on the 16th day of January, 1878, settled, closed and the administrator has been discharged; that at the time of his ■ death James M. Cole was the owner of certain lands; that Reuben E. Cole and Lizzie Blevins each inherited from their father property' largely' in excess of the amount due plaintiffs; that Lizzie Blevins inherited from.her father, James M. Cole, and is now in possession of certain lands; that Reuben E. Cole inherited from his father, James M. Cole, and is now in possession of certain lands; that Robert P. Parks, surety as aforesaid, departed this life on or about the 23d day of October, 1884, leaving surviving him the defendant Thomas Parks his son and only heir; that his estate has long since been, towit,, on the tenth day of October, 1888, finally settled and administrator discharged; that Thomas Parks inherited from his father and now owns and possesses certain lands; that plaintiffs’ claims were not probated against the estates of James M. Cole and Robert P. Parks because they were finally settled and the administrator discharged before the amount of the claims of plaintiffs against them were finally determined. Other facts before alleged were stated in plaintiffs’ complaint. They asked that the amounts due them be decreed to be a lien on the lands owned and held by the heirs of James M. Cole and Robert P. Parks as before stated, and that the lien be foreclosed to satisfy their claims.
The defendants answered, and pleaded the statute of limitations and non-claim and plaintiffs’ neglect and laches' in bar of their suit.
Rizzie Blevins alleged that the lands of James M. Cole had been partitioned and allotted to his heirs in severalty; that she had mortgaged the lands allotted to her to John A. Croom for $600, which was unpaid, and she only owned the equity of redemption therein.
Defendant R. E. Cole answered and denied that he owned any lands by inheritance from his father and which were the subject-matter of this suit, 'but alleged that J. M. Cole died in 1872; that he was administrator of his father’s estate, and held the lands of the estate until they were divided and allotted to their heirs; that' he sold the lands which descended to him from his father’s estate, and which are embodied in this suit, to - his brother, James M. Cole, for a valuable consideration, about the fall of 1882, and repurchased said lands in 1887, together with the lands descended to his brothers, J. M. Cole and Samuel R. Cole.
The parties to this suit agreed as follows: “The defendants, R. E. Cole and Rizzie Blevins, have had possession of the lands alleged in the complaint to have belonged to J. M. Cole, as his heirs, continuously since his death in 1872, holding and asserting title to them as their own, and have exercised the usual acts of ownership.” The same agreement was made as to the possession of defendant, Parks, since his father’s death in 1884.
The defendant R. E. Cole testified that in 1882 or 1883 he sold to his brother, J. M. Cole, his part of his father’s .estate for $850; and that. J. M. Cole kept it two or three years and sold it back to him for $1,900. J. M. Cole testified to the same effect.
P. G. Blevins testified that he was the husband of defendant Rizzie Blevins, formerly Rizzie Cole; that some years prio^ thereto said Rizzie Blevins had mortgaged the land inherited from her father to John A. Croom, and no part'of the mortgage debt had been paid.
This was substantially the evidence adduced at the hearing of this cause as to the lands inherited by defendant from their ancestors.
The court found that, “as to all the claims sued for which were included in the probate order for distribution made in 1875, plaintiffs are barred of all right to recover thereon by reason of laches, but as to the remainder due from W. D. Jacoway, as administrator of the Dickens estate, amounting to $557.85, together with six per cent, interest thereon from the 27th day of August, 1900, plaintiffs are entitled to recover out” of certain lands descended to the defendant and described in the decree;‘and decreed that, unless the $557.85 and interest were paid within thirty days, the lands be sold to pay the same.
Plaintiffs and defendants have appealed.
This suit is not barred as to the balance found in the hands of the administrator at the confirmation of his fifth annual settlement and ordered by the probate court to be' distributed among creditors. The suit commenced in 1878 by the plaintiffs in this suit against Jacoway and the .sureties on his bond ■to set aside the' fifth settlement, and to restate the accounts, and to hold the sureties liable held the statute of limitations in abeyance, and did not terminate until 1893, which was less than eight years before the bringing of this suit, the time prescribed by statute in which actions upon the bonds of 'administrator shall be commenced. As to the $557.85, the judgment for it upon final settlement by Jacoway, as administrator, was within eight years before the bringing of this suit, 'and the statute of limitations has not barred its recovery.
It has been frequently held by this court that “a creditor can proceed in equity against the heirs who have received the ancestor’s estate for satisfaction of his claim against such estate which has accrued after the lapse of the time limited for authenticating it against the administrator, or after the close of his administration.” Wallace v. Swepston, 74 Ark. 520, 527, and cases cited; Hall v. Cole, 71 Ark. 601; Berton v. Anderson, 56 Ark. 470.
When land descended is conveyed by 'the heir to an innocent purchaser for value before the commencement of a suit to charge it with the payment of.an equitable claim not enforceable against the executor or administrator, the title of the innocent purchaser will be protected. Berton v. Anderson, 56 Ark. 470. And it has been held that a mortgagee may be a bona fide purchaser. Fargason v. Edrington, 49 Ark. 207, 214.
.Where the heir or devisee has sold the descended or devised lands so subject, he may in equity be held liable to. the creditor for the proceeds of the sale. This is not the rule of common law when the heir aliened the land before an action was commenced against him to recover the ancestor’s debt. 2 Woerner on the American- Law of Administration (2 Ed.), Star pages, 1261, 1272, and cases cited.
It follows, 'thenj that the lands of R. P. Parks and James M. Cole, sureties on the bond of Jacoway, as administrator, that descended to their heirs, and have not been sold or conveyed to bona fide purchasers, or become the property of innocent parties, can be made liable and sold to pay plaintiffs’ claims. For a discussion of this subject, see Berton v. Anderson, 56 Ark. 470. The equity of redemption of the lands which have been mortgaged is subject to be sold to pay plaintiffs’ claims. The heirs who have sold any part of the lands are accountable to plaintiffs for the proceeds of the sale.
The decree of the chancery court is reversed, and the cause remanded with directions to the court to enter a decree in accordance with this opinion.
Rehearing
on rehearing.
Opinion delivered February 3, 1908.
Appellants file a petition for rehearing in this cause, and contend that the suit brought in 1878 by J. A. Johnston and A. J. Dyer against Jacoway and the following sureties on his administrator’s bond: R. P. Parks, Jacob Graves, Hiram Dacus, Joseph Gantt, Reuben Cole, as administrator of the estate of J. M; Cole, a surety, who had died since the execution of the bond, and Josiah Hawkins, as administrator of the estate of I. T. Brown, another surety who had died, was barred as to appellants. The facts upon which they rest this contention are as follows: James M. Cole, the surety, departed this life about the 29th day of February, 1872, leaving surviving him the defendants Reuben E. Cole and Lizzie Blevins his only heirs surviving him. Reuben E. Cole was, on the 4th day of April, 1872, appointed administrator of his estate, which has long since been, towit, on the 16th day of January, 1878, settled and closed, and he as adriiinistrator was discharged before the beginning of the suit in 1878. Robert P. Parks, surety, departed this life on or about the 23d day of October, 1884, leaving the defendant in this suit, Thomas Parks, his only heir him surviving. On the 10th day of October, 1888, his estate was finally settled, and his administrator was discharged.
Reuben E. Cole was obviously made a party to the suit of 1878 as administrator of James M. Cole, deceased, in the belief that he was still such administrator. Pie certainly knew that fact. Yet, so far as the record shows, he permitted the plaintiffs to rest in that belief while the suit pended, and made no effort to make known or take advantage of his discharge. He stands in an attitude like that of one who knowingly permits himself to be held out as a member of a partnership and permits another to be misled thereby (Campbell v. Hastings, 29 Ark. 512); of one who misleads another by failing to speak when he should (Towers v. Phelps, 33 Ark. 465); of one whose name is signed to an administrator’s bond as surety, without his knowledge, by an unauthorized person, and on being informed makes no objection, but silently permits the administration to proceed on the bond until the administrator commits waste. He can not avoid liability by repudiating the signature. State v. Hill, 50 Ark. 458. Upon the principles upon which the doctrine of estoppel rests, he is estopped from denying his being such administrator, and is as fully liable in this suit as he would have been had he been administrator of James M. Cole during the entire progress of the suit of 1878.
Mrs. Blevins was not made a party to the suit of 1878, Which was probably owing to the fact that the plaintiffs believed that Reuben E. Cole was administrator of James M. Cole, deceased.
Appellants say that on the 23d of August, 1886, “the case was tried on the merits, and a decree entered charging Jacoway, as administrator, with $4,305.35, * * * and against the sureties for costs only, and the sureties were never parties to the suit afterward, or to any litigation growing out of it, and contend that this suit is barred as to them as to matters involved in the suit of 1878.” But this contention is not verified by the record. If such.was the fact, they should have set it up as a defense in the present suit. The presumption is in favor of the regularity of the proceedings of courts of record. Inasmuch, however, as the decree of the chancery court will be reversed in part, and appellees concede it, and the record in the case is incomplete, the cause will be remanded with leave to show that fact in the chancery court, and for consequent relief.
It may be that the suit of 1878 was not revived against the personal representative of Robert P. Parks. The statutes in such cases provide that an action against a defendant can not be revived after his death against his personal representative, or against him and the heirs or devisees, or both, of the defendant, unless by consent, until after six months from the qualification of the personal representative; and that it shall not be revived against the representative or successor of the defendant, without the consent of such representative or successor, unless in one year from the time the order therefor could have been first made. Kirby’s Digest, § § 6312, 6313; State Fair Association v. Townsend, 69 Ark. 215. If the suit of 1878 was not revived against the representative or successor of Robert P. Parks, deceased, within the time prescribed by the statutes, the power to do so without consent ceased as to such representative or successor, and from that time the statute of limitations ran against the plaintiffs in favor of such representative or successor as to the matters involved in such suit.
The decree of the chancery court as to $557.85 and interest thereon is affirmed, and the remainder is reversed, and the cause is remanded .with directions to the court to proceed and render decree in accordance with the opinions of this court in this cause.
