74 Ark. 81 | Ark. | 1905
(after stating the facts.) The jurisdiction of the chancery court to hear and determine this cause has not been challenged by appellee, either here or in the court below. The defendant being in possession of the lands holding adversely to the plaintiffs, as shown by the complaint, and no ground for equitable relief being alleged, it is clear that the suit should have been commenced in the law court, or, after having been commenced in the court of equity, should have been transferred to the proper court; but, as appellee made no motion to transfer, and submitted to trial of the issues without objection in the court of equity, it is held to have waived its right to transfer' the cause. Apperson v. Ford, 23 Ark. 746; Talbot v. Wilkins, 31 Ark. 411; Moss v. Adams, 32 Ark. 562; Organ v. M. & L. R. Ry. Co., 51 Ark. 235; Harris v. Townsend, 52 Ark. 411; Love v. Bryson, 57 Ark. 589.
Appellee’s title is based upon the sale made by the administrator of the Collins estate under an order of the probate court, which shows on its face that the sale was ordered for the payment of expenses of administration incurred by a former administrator. Has the probate court jurisdiction to order the sale of lands of a decedent for expenses of administration?
“Lands and tenements shall be assets in the hands of every executor or administrator for the payment of the debts of the testator or intestate.” Kirby’s Dig. § 186. In Mays v. Rogers, 52 Ark. 320, this court held that “where there are no debts due by the decedent, there can be no sale of lands of his estate to pay the expenses of an administration had thereon.” The court in that case further said: “To what extent the right to resort to the lands for the sole purpose of paying the expenses of administering the estate is limited has not been fully argued by counsel, and it is not now determined. In every case, however, where an application is made to sell lands solely for the expenses of administering the estate, it must be made to appear that the expenses were incurred in the course of administering the estate to pay debts due personally by the decedent.” Stewart v. Smiley, 46 Ark. 373; Rorer, Jud. Sales, § 236; Torrance v. Torrance, 53 Pa. St. 505; Dubois v. McLean, 4 McLean, 486; Farrar v. Dean, 24 Mo. 16; Sumner v. Williams, 8 Mass. 199; Walker v. Diehl, 79 Ill. 473; Moore v. Ware, 51 Miss. 206; 2 Woerner, Am. Law of Administration, §* 469.
The probate court is a court of superior jurisdiction, and, within its jurisdictional limits, its judgments import absolute verity, the same as other superior courts. Borden v. State, 11 Ark. 519; Curry v. Franklin, 51 Ark. 338; Montgomery v. Johnson, 31 Ark. 74; Apel v. Kelsey, 52 Ark. 341; Alexander v. Hardin, 54 Ark. 480. But where its judgment shows affirmatively on the face that the court was proceeding in a matter over which it had no jurisdiction, or acting beyond its jurisdictional limits, such judgment is void. Guynn v. McCauley, 32 Ark. 97; Summers v. Howard, 33 Ark. 490; Meyer v. Rousseau, 47 Ark. 460.
The confirmation cures all irregularities in the sale or the order therefor, but not jurisdictional defects. The order of sale here shows affirmatively that it was made to pay expenses of administration, and not debts of the decedent, and is therefore void. It does not show either that the sale was to pay debts or for “expenses of administration incurred in the course of administering the estate to pay debts due personally by the decedent.”
As to the undivided half of the lands which fell to the widow, Elizabeth B. Collins, under the will of H. H. Collins, the statute of limitations did not begin to run until after the death of the widow, and, for that reason, the plaintiffs are not barred. Kessinger v. Wilson, 53 Ark. 400; Moore v. Childress, 58 Ark. 510; Ogden v. Ogden, 60 Ark. 70; Morrow v. James, 69 Ark. 539.
The right of action of the heirs as to the other half of the land has been complete since the date of the void sale, and the same is barred by the statute. The proof shows that the widow has been in possession of the land since the date of the sale, exercising acts of ownership inconsistent with any recognition of the rights of the heirs. She repeatedly mortgaged the lands, warranting the title thereto, and, in 1891, executed a deed with full covenants of warranty purporting to convey the title in fee.
So the decree is affirmed as to an undivided one-half of the lands; and as to the other half, the cause is reversed, with directions to enter a decree for appellants.