49 Ark. 75 | Ark. | 1886
William Carter Shearon died in the year 1863, leaving a widow and two young children. He was the owner of two parcels of land, each containing one hundred and sixty acres, and upon one of which he resided with his family. He was also possessed of some personal propertybut this was in part destroyed by the soldiery, the civil war being then flagrant and the remainder was consumed in the sustenance of his surviving family. Administration of his estate was granted in October, 1865, to Samuel H. Nichols, his brother-in-law, and also a creditor. At January term, 1866, of Conway Probate Court, the administrator obtained an order for the sale of the real estate of his intestate for the payment of debts. The two tracts were sold in solido to A. P. Nichols, a brother of the administrator, for $700. In the course of a year or two, A. P. Nichols conveyed the homestead tract to Samuel H. Nichols, and the remaining tract to William L. Nichols, another brother. Out of this probate sale have grown three law-suits, which we shall dispose of in one opinion.
The bill was confessedly a mere mode of defence to the action of ejectment; its object being to control the proceedings in that case. But parties cannot litigate about the same subject matter, both at law and in chancery, at one and the same time. The whole controversy must be brought out in one suit. A defendant must make all of his defences, of whatsoever nature they may be, in the action in which he is sued. And if some of the issues raised are exclusively or more properly cognizable in another forum, he must move a transfer to the proper docket. This was the plain course for the heirs of William L. Nichols to pursue. And as the judgment against them in the ejectment could not be annulled or modified by any decree in the equity suit, except for a defence which had arisen or been discovered since its rendition, nothing remained except to dismiss the bill. Mansf. Dig., sec. 4932; Reeve v. Jackson, 46 Ark., 272.
The defendant filed an answer and cross-bill, denying the charges of fraud and asserting that the proceedings for the sale of the land were in all respects regular and valid; and that he had no interest in his brother’s purchase, although he admitted having afterwards bought the land. He alleges he had placed extensive and beneficial improvements on the land; and that he had taken the plaintiffs, when they were small children, to his house, out of affection and charity, and without any expectation of remuneration; and that he had reared and educated them, at an expense of $1000 in excess of all that their labor had earned for him. And he prayed for compensation for his improvements and reimbursement for his expenditures in behalf of the plaintiffs, if for any cause the sale of the land should be set aside. Proofs were taken, from which it appeared that the Probate Court had confirmed the administrator’s sale ; that the defendant had gone into possession in 1868, under his purchase from A. P. Nichols, and had since that time enjoyed the rents and profits; and that he had made costly improvements which had enhanced the vendible value of the land not less than $2000, and perhaps as much as $4000. It was also shown that the mother of the plaintiffs having remarried and being very poor, the defendant had, at her request, become their guardian; had brought them up, at considerable cost, as his own children; and had performed an excellent part towards them.
The court decreed that the attempted sale of the homestead was void for want of jurisdiction in the Probate Court to order it; and moreover that it was the result of a fraudulent combination between the defendant and his two brothers. It therefore set aside the defendant’s title deeds, but required no-account of rents, balancing them against his improvements. It also found that the defendant, during his administration, had expended in payment of taxes, expenses of administration and probated claims $329.15 over and above what he had received from the personal assets of his intestate; and it charged this sum upon the land. Both parties have appealed.
The sale of the homestead was void. ' The defendant was aware of all the circumstances which gave the plaintiffs a homestead right in the premises. He must take notice of their right to receive the rents during their nonage and that the land in the meantime is protected from sale for the ancestor’s debts. Booth v. Goodwin, 29 Ark., 633 ; Altheimer v. Davis, 37 id., 316 ; McCloy & Trotter v. Arnett, 47 id., 445, and cases there cited; Wehrle v. Wehrle, 39 Ohio St., 365.
The judgment in the ejectment suit; the decree dismissing the bill filed by the heirs of William L. Nichols, and the decree in the case of Shearon’s heirs against Samuel H. Nichols are, severally, in all things affirmed.