55 Ark. 485 | Ark. | 1892
The judgment in this case is based on the theory that the sale of the land under the decree in partition did not convert the minor’s interest into personalty, but that the proceeds of the sale stood for the land impressed with the characteristics of realty when each of the minors died, because, not being sui juris, neither of them was capable of confirming the conversion of land into money, whether it was his original share of the common ancestor’s estate or that which one inherited from the other.
The argument is ingenious and is supported with much learning, but much of the learning is obsolete by reason of the increased power of equity over the lands of minors some of the cases cited are controlled by statute, and the argument itself is unsound.
The rule in such cases is stated tersely by Sir G. Jessel, M. R., in Foster v. Foster, L. R., 1 Ch. Div., 588, as follows: “ If the conversion is rightfully made, whether by the court or a trustee, all the consequences of conversion must follow, if there be no equity in favor of the heir or any one else for re-conversion.”
It may be that this statement of the rule is subject to the explanation or qualification that the conversion takes effect only to the extent of the purpose for which conversion was required—where, for example, a surplus remains from the proceeds of land sold to satisfy a decree of foreclosure. In such a case the conversion to raise a surplus over the decree and costs was not required, and was probably'not intended by the court; and the rights of the parties in interest,, it is held, remain the same as if no conversion had taken place, although the sale was rightful. Cooke v. Dealey, 22 Beav., 196; Oberle v. Lerch, 18 N. J. Eq., 346; Cronise v. Hardt, 47 Md., 433; 2 Woerner’s Administration, secs. 481, 562.
But that phase of the question is not presented by this case.
Here the object of the sale was to convert the lands into whatever amount of money they would bring. The lands could not be divided ; and it was decreed that they should be converted into money, which could be. The decree and sale in pursuance thereof was authorized by statute and was rightful. There was a conversion therefore of land into personalty, and it must go, in the condition it is found at the death of the person in whom it was vested, to his personal representative, unless the heirs can show an equity in their favor for re-conversion. But the heir, equally with the distributee, is a volunteer; and when he stands upon his-naked right as heir uncoupled with any other fact, there is-no equity in his favor as against the distributee. Lenow v. Fones, 48 Ark., 557; Inwood v. Twyne, 1 Ambler, 418 and note; S. C. 2 Eden, 147, 152 and note. The equities between them being equal, or rather there being no equities, the money must go in the form in which it was at the death of the owner—that is, as personalty.
This conclusion is sustained by the luminous judgment of Ch. J. Shaw in Emerson v. Cutler, 14 Pickering, 108, and by the opinions of a line of illustrious judges in Pennsylvania, Wentz s Appeal, 126 Pa. St, 541, and previous cases. See too Holland v. Adams, 3 Gray, 190-1 ; Armstrong v. Miller, 6 Ohio, 59; Fowler v. Scott, 25 L. T. N. S., 23; Oberle v. Lerch, 18 N. J. Eq., at bottom of 351 and 352, and cases-cited.
Anciently the court of equity did not exercise the power to divest a minor of the title in fee of his real estate. As-the court acted only in personam, an absolute decree for a conveyance was not entered against an infant in any proceeding whether for partition or other purpose. Daniell’s Ch. PI. & Pr. (4th ed.), p. 167; Freeman on Partition, etc., sec. 467; Shumard v. Phillips, 53 Ark., 43 ; 1 Story, Eq., sec. 652. His title might be divested by sale or otherwise under a decree, upon the condition, which was inserted in the-decree, that the infant might disaffirm it and retake his land after his majority. As the court did not assume to direct a. conversion of his land absolutely, it was held there was no-conversion until he elected that-there should be, and he could make no election until he attained his majority. Consequently "the purchase money stood in lieu of the land and retained its impress for the full period of the infant’s minority, going to the heir and not tó the next of kin if the minor died. But the learning on that subject is no longer applicable because our courts are empowered to divest the minor of his estate of inheritance absolutely. Shumard v. Phillips, 53 Ark., sup. “That power, as we have seen, carries the right to convert his ■land into personalty in a proper case without his assent, be-cause it makes Byconversion rightful and therefore absolute.
The provisions of the statute regulating proceedings in ■partition are applicable to infants. They may legally become parties to such a proceeding, and the statute declares that the judgment of partition “shall be conclusive on all "the parties to the proceedings.” Mansf. Dig., sec. 4802. Where a conveyance is made by the court’s commissioner in pursuance of a decree directing the sale of the land for •purpose of partition, it is declared that the conveyance “shall be a bar, both in law and equity, against .all persons ■interested ” who are parties to the suit. Ib., 4811. As if to leave no doubt that minors were includéd in these gen•eral provisions, it is provided that no “ guardian of any minor or person of unsound mind, party to the proceedings” shall be interested in. the purchase of lands sold for partition; and further that the distributive shares of the parties in the proceeds of sale shall be paid “ to them, their guardians or legal representatives.” Ib., 4808,4812. It follows that the judgment in partition is as effective against an in-fant as against an adult, the only difference which the statute makes in any case being that the infant has a more extended right to set the decree aside for error upon a showing of merits. Boyd v. Roane, 49 Ark., 397; Corker v. Jones, 110 U. S., 317; Allen v. Troutman's Heirs, 10 Bush, 61. Even' when he succeeds in setting a decree aside, he cannot take •the land from an innocent purchaser at the judicial sale. Boyd v. Roane, 49 Ark., sup. He has therefore nothing. like an election to reject the purchase money and retake the land. Nor does the money remain in court subject to a trust to be reinvested in land, and therefore impressed with the quality of real estate, as is provided in several acts of parliament. Note to Fletcher v. Ashburner. Ld. Cas., Eq., vol. 1, pt. 2, p. 864. In cases controlled by those acts the owner has his election to enforce the trust or affirm the conversion. But under our statute for partition there is-no sort of election because there is but one right, and that is a right to the money. The title to it vests in the parties entitled to receive it as soon as the conversion is made, and it vests as personalty because there is an actual conversion.
The English cases cited in the notes of section 1167, 3. Pomeroy’s Equity, and at page 363 of Knapp on Partition, as holding that no conversion is effected by the sale of an infant’s land in partition, or under the right of eminent domain, are all founded on acts of Parliament, and have no application here. New York, New Jersey, North Carolina and other States have statutes enacting that no conversion shall be deemed to take place when an infant’s lands are sold. Knapp on Partition, p. 359; Oberle v. Lerch, 18 N. J. Eq., 356-7. The decisions in those States are therefore not applicable.
Let the decree be reversed, and the cause remanded with instructions to enter a decree for the appellant in accordance with this opinion.