154 Ark. 633 | Ark. | 1892
(after stating the facts). The sale in 1869 divested J. C. Davie of all beneficial title to the land. He held the legal title as a security for the purchase money, but his property was in the notes, not in the land. As the land had passed from him, and he was not the owner, it could not descend upon his death to his heirs. The plaintiffs could therefore recover no share in it by reason merely of his death and their heirship. But it is said that the notes given for the purchase money belonged to the estate of which plaintiffs were distributees; that said notes were without authority delivered by the administrator to the widow, and constituted almost the entire consideration for the assignment of the title-bonds to her; and that by reason thereof she held the estate created by the bonds for the benefit of those interested in the notes. The administrator was not authorized to purchase the land for the benefit of the estate, or to acquire title for the heirs by surrender of the notes. If he diverted assets of the estate by an unlawful delivery to the widow, it may be that those interested in the estate could have demanded that she restore them, or that they could have followed the proceeds into other property, in case the notes had been converted; but, if such right would have arisen upon the condition indicated, it would not have vested any title to the land, but conferred only an equity to charge the land with the payment of the notes. Whether the plaintiffs could assert that right in this proceeding after the administrator had fairly settled the estate, and accounted, though improperly, for the notes, is a question not presented; for the record shows that the plaintiffs have parted with whatever rights they had in the notes, and are in no position to question the conduct of the administrator. The plaintiff E. N. Davie, by his deed of the 10th of January, 1872, conveyed and sold to the widow all his interest in the estate, and this conveyance was but the consummation of a sale actually made about a year before. How he can find any pretext to claim an interest in the notes we cannot conceive.
Mrs. Finch, the mother of the plaintiffs Garrison, Halloman, McCutchen, and Finch, early in 1871 sold to the widow all her interest in the estate for $1,000, which was paid to her; and, by her attorney in fact, she executed a conveyance for the purpose of consummating the sale on the 7th day of July, 1871. The description in the conveyance is about as obscure as one could be, but its meaning can be ascertained, and it appears that the property conveyed “was that set out in the inventory of the administrator. But it is said that a married woman cannot convey property by attorney. The reply is that she can dispose at least of her personalty, as a feme sole. Much of the business of the country is conducted by married women, and the result of the argument would be to invalidate all sales made for them by clerks or other agents — a position without support. But, independent of the deed, a parol sale was made months before, and the agreed price paid. The notes were delivered to the widow as entitled to all the estate, and the administration subsequently settled. For more than 13 years after the sale, no effort was made to dis-affirm it, and no reason shown to excuse the delay. If there ever was any ground for Mrs. Finch or those claiming under her to avoid the sale, the unexplained lapse of time bars it. The same may- be said as to the rights of E. N. Davie.
The claim of Mrs. Clement presents more color of merit; for she was a minor when the sales were made to the widow, and her interest is claimed only by virtue of the attempted sale of her guardian. . There is no proof that the guardian was authorized to make the sale, and we infer from the circumstances that she was not. But the widow paid for her interest, the money went to her use, and, as the evidence discloses, she knew the facts. She came of full age in August, 1877, before the administration of the estate was settled. For nearly seven years she did nothing to disaffirm the sale. Acquiescence for that time must be held an implied ratification of the guardian’s sale of her interest.
The widow, therefore, acquired the interest of all the heirs in the notes, and, having acquired the land subject only to the lien of the notes, her title became perfect; and the plaintiffs are entitled to no relief as against those to whom her rights have passed.
It was suggested in the argument that some of the plaintiffs were entitled to recover as heirs of the widow, in case she was found to have owned the land. No such claim was asserted in the pleadings, or appears to be sustained by the proof. The mother of two of the plaintiffs is an heir of the widow; but, as she is living, they cannot have a recovery upon her heirship. Besides, it appears that the widow made a will, which was admitted to probate by the probate court of White County; and whether it was properly admitted is a question that cannot be reviewed in this collateral proceedings, nor at the suit of persons not interested in it. But it is contended that the will was not in fact admitted to probate by the probate court, but by the clerk of the court in vacation, and that the court subsequently only caused an order to be entered, reciting that the will had been fully proved before the clerk, and that the same was approved by the court, and directing that the will be recorded as such. This, it is contended, was not an order admitting the will to probate, but simply approving the clerk’s action. The argument has no regard for the effect of the order, but rests alone upon its form. It is too technical for our approval. Petty v. Ducker, 51 Ark. 281, 11 S. W. Rep. 2. It is admitted that by the will the defendant was to have the lands, and so long as the judgment of a court of competent jurisdiction, admitting it to probate, is unreversed, its terms must control the course of the land. Dowell v. Tucker, 46 Ark. 438.
From the views expressed, it follows that the plaintiffs were entitled to no relief, and that the defendant was entitled to have the legal title to the land vested in him. The judgment granting the relief to the former and denying it to the latter was therefore erroneous in each respect. Reversed and remanded, with directions to enter judgment in accordance with this opinion.
