158 Ark. 255 | Ark. | 1923
This suit was instituted in the chancery court of Lawrence County by the children and heirs at law of Isaac Less, deceased, against Mrs. Ida Less, widow of their father, for contribution on account of moneys paid by them to liquidate a mortgage which covered the lands of their ancestors, and part of which had been assigned to Mrs. Ida Less as her dower interest in said estate. The gist of the bill was that Mrs. Ida Less had failed to pay her proportion of a $40,000 mortgage upon said lands, a portion of which had been adjudged a lien upon the lands assigned to her by said court, and which indebtedness they were compelled to pay at maturity in order to save the lands from foreclosure and sale. The decree of the chancery court assigning dower and charging the lands assigned with a portion of said indebtedness was set up in the bill.' Said decree was affirmed on appeal to the Supreme Court in the case of Less v. Less, 131 Ark. 232.
Mrs. Less filed an answer denying the validity of that portion of the decree burdening the dower lands assigned to her, on the ground that the issues joined by the pleadings did not embrace the apportionment of the said indebtedness to the lands partitioned, alleging that the only proper issue involved in that case, according to the pleadings, was the allotment of dower. She set out and made the pleadings in the suit for the assignment of dowér a part of her answer.
A separate answer and Crossbill was filed by G-ussie Less, the divorced wife of Isaac Less, alleging that said court had declared a lien upon the dower lands in question for one-third of the monthly alimony of $140 allowed her, and prayed that said monthly allowance be reduced to an annuity and declared an equal lien in proportion to the mortgage lien upon the dower lands in question.
Ida Less filed a reply to the answer and crossbill of Gussie Less, attacking the validity of the decree burdening her dower interest in said lands with said monthly allowance of alimony, and denying the right of G-ussie Less to have same reduced to a sum certain.
The Commonwealth Farm Loan Company and its trustee filed an answer, admitting the payment of the mortgage debt, after maturity, by the children and heirs of Isaac Less, deceased.
The case was submitted to the court upon the pleadings and testimony, which resulted in a decree fixing equal liens upon the dower lands in favor of said heirs for $7,741.41, and in favor of Gussie Less for $4,209.20, from which is this appeal. The heirs of Isaac Less, deceased, had prayed for contribution in the sum of $21,493 from appellant, on the ground that they were entitled to an annuity sufficient to produce one-half of the interest to carry the mortgage during the expectancy of Mrs. Ida Less, according to mortuary tables introduced in evidence, instead of an amount necessary to produce only one-third of the interest during the nineteen-year expectancy of said appellant. The heirs filed a crossbill from the decree fixing the annuity, in an effort to increase the amount thereof.
Appellant’s paramount contention for reversal is that the court’s acts in burdening the dower lands with a portion of the $40,000 mortgage due the Commonwealth Farm Loan Company, and with a part of the -alimony allowance to G-ussie Less in the'original suit for the allotment of dower, were coram non judice, and void. Attention is called to the fact that, in'none of the pleadings in the original action of Ida Less against the Less heirs for admeasurement of dower, were requests made for liens to he declared on the dower lands for any part of the mortgage or alimony indebtedness, but that the orders were made growing out of exceptions filed to the commissioners’ report, who were appointed to set-off the dower lands. This is true, but that does not necessarily mean the question of the apportionment of the indebtedness was not proper subject-matter for adjudication in the suit for the allotment of dower. Issues may arise in a case out of the testimony, whether pleaded or not, touching proper subject-matter for adjudication. It is immaterial, therefore, how the point arose, if it was, in substance and effect, within the issue involved, and if all necessary parties were before the court. The main purpose of that suit, of course, was to allot dower, but incident to it was the all-important question between appellant and the heirs, of whether dower should he assigned free from or subject to the liens upon the lands for borrowed money and alimony. Suffice it to say, during the progress of the suit it developed that the lands sought to be partitioned were incumbered, so the issue as to what portion of the incumbrances each part of the land should bear raised itself and became a proper issue for adjudication by the court. The owners of the liens were not necessary parties in the determination of this question, for their liens were not impaired by the division of the lands.
The issues tendered by the answer of appellant in the instant case were clearly res judicatae. The facts alleged presented an issue of whether or not the dower lands in question were subject to the payment of a just proportion of the lien indebtedness upon the lands of Isaac Less, deceased. That identical issue was involved and determined in the case of Less v. Less, 131 Ark. 232, and was- acted upon in subsequent legal proceedings between the same parties, as shown by pleadings, intro■dneed in evidence: In the case of Less v. Less, supra, it was said by.this court that “the court did not commit error in the instant case in assigning dower and imposing thereon a proportionate amount of the lien indebtedness.”
In view of the fact that the dower lands may be sold to satisfy the lien for the sum contributed by the heirs to pay the mortgage indebtedness on them, we see no reason why the monthly allowance for alimony may not be reduced to a sum certain, so that Gussie Less may share the proceeds with the heirs who are subrogated to the rights of the Commonwealth Farm Loan Company. Neither lien has priority.
The contention made by the heirs on cross-appeal for an increase of the annuity adjudged in their favor is without merit. It is true the original decree .rendered by the trial court in the case of Less v. Less, supra, charged the dower lands, after maturity of the debt, with a sum sufficient to produce an annuity for the remainder of Ida Less’ expectancy for one-half of the amount of the annual interest on the mortgage. This was manifestly a clerical error, as the lands should have been charged with only one-third of the amount of the annual interest.
The decree is affirmed.
