140 Ark. 100 | Ark. | 1919
This suit was commenced on September 13, 1916, as an ejectment suit by appellees against appellant in the Columbia Circuit Court to recover certain lands alleged to have comprised the homestead of their father, R. O. Taylor, at the time of his death, and for damages on account of rents and timber out during the detention thereof by appellant. The complaint alleged ownership in appellees of the land by inheritance from their father, and that appellant was in the unlawful possession thereof.
Appellant answered, admitting that appellees were the only heirs of E. O. Taylor, deceased, hut that their title was extinguished under a prohate sale of said lands for the payment of valid claims against the estate of said E. O. Taylor, deceased; that he and his brother purchased the lands at said probate sale and received certificates of purchase for the respective parts purchased by each; that his brother assigned his certificate of purchase to the appellant; that the sale was confirmed on the 22d day of November, 1913, at which time, he received a deed to said land; that he went into possession of the land under the certificates of purchase aforesaid and made valuable improvements thereon, setting them out in detail, both as to kind and value; that he paid the taxes thereon in the sum of $81.16; that he paid the administrator, on account of the purchase, $415.99, which was used in liquidating the indebtedness of said estate; that said lands were subject to sale for the indebtedness of the estate, even though the homestead of the deceased at the time of his death, for the alleged reason that the widow had conveyed her homestead right, and that all children entitled to enjoy the homestead’ were of full age at the time said real estate was ordered sold. As further defenses, appellant pleaded limitations, estoppel and laches.
On motion of appellant contained in the answer, the cause was transferred to the chancery court of Columbia County. Appellees filed a reply, denying all the material allegations relating to new matter in the answer, with the additional request that the deed received under and by virtue of the probate sale be canceled as a cloud on their title.
The cause was heard upon the pleadings and exhibits thereto, depositions of witnesses and-an agreed statement of facts marked “!”■ and “2,” from which the court found that appellees were owners of said land by virtue of inheritance from E. O. Taylor, deceased, but that H. T. Taylor, an appellee, had conveyed his interest therein to appellant; that -the other appellees owned an undivided nine-tenths in said real estate; that they were entitled to a rental of $1,578.53, covering the period from the institution of the suit, until the date of the decree and for three years prior to the institution of said suit, and $167.48 for timber cut and removed from said land by appellant. As an off-set to these two amounts, the court found that appellant was entitled to $81.16 paid for taxes, and $928.90 for improvements, leaving a balance of $635.96 due appellees on account of detention of the lands by appellant; that appellant was entitled to be subrogated to the right of the creditors of the estate of R. O. Taylor, deceased, to the amount of $415 and interest, but that the amount appellant received as rents on the place from the time he took possession until September, 1913, was a full and complete off-set against said last named amount. A decree was rendered in accordance with the findings, from which an appeal has been duly prosecuted to this court. During the pendency of this appeal, appellant has settled with and purchased the interest of Mrs. Jean Taylor, Mrs. Mary Lee Taylor, Mrs. Ida Den-man, Mrs. Carrie Sweet, Haston Taylor and Frank Taylor. Based upon appellant’s purchase and settlement of said interests during the pendency of this appeal, the other appellees filed a motion to dismiss the appeal. This court dismissed the appeal as to the interest of the appellees purchased by appellant, but overruled the motion as to the appellees whose interests were not purchased.
The following facts are definitely established by the record: R. O. Taylor, the father of appellees, together with his wife, Nancy Taylor, occupied the lands in controversy as their homestead when he died. Years before he married Nancy Taylor, he had been divorced from the mother of Haston and Frank Taylor, who took them in infancy to another State, where they remained until after R. O. Taylor’s death. They were both minors at the time of their father’s death. Haston became of age December 28,1910, and Frank in May, 1913. They had never actually lived with their father on the land in question. The older children continued to reside near, and were living near him when he died. Mrs. Nancy Taylor abandoned her homestead right on January 4, 1910, by conveying same to H. T. Taylor.
H. T. Taylor conveyed his interest to appellant on the 9th day of December, 1913. W. M. Johnson, father of appellant, was appointed administrator of the estate of R. O. Taylor, deceased, on January 7, 1910. He obtained an order, on May 11, 1910, from the probate court to sell the property in question for the purpose of paying the indebtedness of the estate. Pursuant to the order, the land was sold on the 10th day of June, 1910, one parcel being purchased by Henry Johnson and the other by appellant. The land sold for $415, which amounted, including interest, at the date of the judgment to $584.97. Henry Johnson afterwards assigned his certificate of purchase, for the parcel bought by him, to appellant. Appellant went into possession under his certificates of purchase and made valuable improvements thereon prior to May, 1913, and paid $81.16 taxes thereon from that time until the judgment was rendered herein. The sale under which he purchased was reported on November 22,1913, at which time he received a deed.
The facts responsive to the issues of estoppel, laches, the value of the improvements made and the rental value of the land, both before and after the improvements were made, were in conflict. It would occupy much space to set out the disputed facts in detail, so we will content ourselves with giving our conclusions thereon in determining the questions to which they relate.
It is insisted by appellant that, because Haston and Frank Taylor had never resided with their father upon this particular land and were not with him at the time of his death, they were thereby deprived of their homestead rights in the land in question. Section 6, article 9, of the Constitution of 1874, which is repeated as section 3882 of Kirby’s Digest, provides that “* * * if the owner leaves children, one or more, said child or children shall share with said widow, and be entitled to half the rents and profits till each of them arrives at twenty-one years of age; each child’s rights to cease at twenty-one years of age, and the shares to go to the younger children, and then all to go to the widow; and, provided, said widow or children may reside on the homestead or not. * * * ” In construing this section of the Constitution, as applied to a widow who did not reside with her husband at the time of his death, this court said, in the case of Duffy v. Harris, 65 Ark. 251: “In this State it is held that the domicile of the widow follows that of the husband, and we understand this to be the rule, and that the fact that she abandons her husband, and lives apart from him in another State, will not form an exception, nor cause her to forfeit her right to the homestead. She is not a nonresident, while her husband is a resident. Her legal status, as to this, is governed by that of her husband.”
Appellants insist that the date of sale referred to in the statute has reference to the date it was made, and appellants that it has reference to the date it was confirmed. This court said in the case of Cowling v. Nelson, 76 Ark. 146, that:
“The five-year statute does not apply to judicial sales unless they are confirmed, because there is no sale until that act.”
And in Morrow v. James, 69 Ark. 539, said: “Before the statute of limitations of five years could apply, there must have been confirmation of the sale made under the order of the probate court. Without confirmation there was no sale. ’ ’
It seems clear that, if there could be no sale until confirmation, the statute could not begin to run until the sale was confirmed, but this court was more specific in Gavin v. Ashworth, 77 Ark. 242, in which it was said that: “The limitation of five years, applicable to judicial sales of lands, commences to run as soon as the sale is confirmed. ’ ’
And it was still more specific in the case of Gaither v. Gage, 82 Ark. 51, where it was said, in speaking of the five-year statute of limitations under judicial sales, that: “The statute runs from the date of the completed sale, regardless of the time when possession is taken.”
• Appellant cites and relies upon the construction placed upon the statute in Mitchell v. Etter, 22 Ark. 178. The ruling in that case had application to a tax sale and not to a judicial sale. It is apparent that this action'was not barred by the five-year statute of limitations for the reason that the suit was brought within five years from the confirmation of the sale by the probate court.
Upon conflicting evidence, the chancellor found that appellees were not guilty of laches or in any way, by their action, estopped from instituting this suit. Under the rules announced in the cases above cited, applicable to laches and estoppel in pais, it can not be said that the finding of the chancellor, to the effect that the appellees were neither estopped nor guilty of laches, was contrary to the weight of the evidence.
No prejudicial error appearing in the record, the decree is in all things affirmed as to the several interests of the appellees, now before the court, in the land in controversy and in the judgment rendered for damages for the detention thereof.
