133 Ark. 97 | Ark. | 1918
Alfred Lucky died intestate February 28, 1914, leaving Sarah Lucky, his widow, Jack Lucky, Nathan Lucky, George Lucky, Alfred O. Lucky and Emanuel Lucky, his children and only heirs at law. At the time of his death he owned the northwest quarter, northwest quarter and north half, southwest quarter, northwest quarter,' section 22, township 2 south, range 10 west, in Pulaski County, Arkansas, which constituted his homestead. The family were residing on the homestead at the time, and still reside on about two acres where the house is situated. On April 23, 1903, prior to his death, he and Sarah Lucky executed a mortgage on the homestead to II. L. Fletcher for $375, bearing interest at the rate of 10 per cent, per annum from date until paid; and pledged his team to Smith & Estes for $190. T. C. Wimberly, a relative, was appointed and qualified as administrator of the estate of Alfred Lucky, deceased. He procured an order from the probate court to borrow $500 on long time from the American Freehold Land & Mortgage Company of London, Limited, with which to pay the Fletcher mortgage on the real estate and the Smith & Estes mortgage on the team. On the 17th day of February, 1905, Sarah Lucky, widow, and T. C. Wimberly, administrator, joined in a deed of trust to Benjamin Graham for the American Freehold Land & Mortgage Company of London, Limited, to secure twelve notes evidencing a loan of $600. Out of the money thus borrowed, the administrator paid the Fletcher mortgage on February 23, 1905, and $100 on the Smith & Estes mortgage on February 24,1905, and, about the same time, paid J. M. Rose $34,50 interest on the Fletcher mortgage, and $2.50 for recording same. Smith & Estes advanced supplies to Alfred Lucky prior to his death and to his family after his death, and Dr. J. H. Estes continued to assist them in this way until they owed him a balance of over $1,100, including the Smith & Estes account. Default was made in the payment of the indebtedness to the American Freehold Land & Mortgage Company of London, Limited, and it foreclosed the mortgage under the power contained therein and purchased the lands at the sale. Thereafter it sold the lands to J. H. Estes, who then contracted them to J. H. Laster. Dr. J. H. Estes also bought an outstanding tax title from G. A. Merrick and obtained a quitclaim deed from him to the southwest quarter of the northwest quarter of said section, township and range for $20.37. Laster’s attorney' advised that it was necessary to quiet the title to the lands. J. H. Estes then brought suit in the Pulaski Chancery Court to quiet the title and obtained service in the manner provided by law upon the widow and children of Alfred Lucky, deceased. J. A. Comer, a practicing attorney at the Pulaski bar, was appointed guardian ad litem to represent the minor defendants and filed answer for them, denying seriatim the material allegations of the complaint, and offered to discharge any liens that might exist against the lands. By employment, he also filed an answer for Sarah Lucky. The cause was heard by the court upon the complaint and exhibits, the answer of Sarah Lucky, the answer of the guardian ad litem for the minor defendants, the original obligations and instruments sued on, oral and other evidence, tax deeds, tax receipts and abstracts of title. The court found that the deeds, together with the other instruments in writing, constituted mortgages and that J. H. Estes was entitled to recover $1,772.95 out of the land and from Sarah Lucky. La accordance with these findings, on April 23, 1910, the court rendered a personal judgment against Sarah Lucky, declared the amount a lien on the lauds, and decreed a foreclosure and ordered a sale of the lands if the amount was not paid within twenty days. The amount was not paid and the lands were sold under the order and purchased by J. H. Estes, who deeded them to J. H. Laster.
This suit was instituted on the 2d day of December, 1915, in the Pulaski Chancery Court to set aside the decree rendered by said court on April 23, 1910, on the ground that the judgment was procured by fraud. The appellants denied all the material allegations ip the complaint charging fraud. The court heard the case upon the pleadings, documentary and oral evidence, from which it found that the lands in controversy constituted the homestead of appellees and that they had been in actual possession of a portion of them since the death of Alfred .Lucky, but that Sarah Lucky had lost her homestead right therein by'abandonment, and that the decree sought to be set aside was erroneous and void and canceled it. The court also heard proof as to the rents and profits received by appellants from said lands and the value of improvements made and the taxes paid by them and struck a balance in favor of appellants for $147.22, and declared a lien in favor of J. H. Laster on the lands for said sum, by reason of subrogation to the rights in the deed of trust executed by Alfred Lucky, deceased, and Sarah Lucky, to H. L. Fletcher. From that decree an appeal has been prosecuted to this court.
The most that can be said concerning the entry of the judgment on April 23, 1910, is that it was entered for an erroneous amount and that a larger amount was adjudged a lien upon the homestead than the original mortgage covered. These were issues either tried or triable in that suit, and, since it appeared from the face of the decree that the defendants were minors, the only remedy to them, if error was committed, was by appeal.
Under this view of the case, it is unnecessary to discuss the question of rents, profits, taxes and improvements.
For the error indicated, the decree is reversed and the cause remanded for the entry of a decree in favor of appellants.