166 Ark. 564 | Ark. | 1924
(after stating the facts). This court has held that the defense of the statute of limitations may be interposed in equity by demurrer where the cause of action appears upon the face of the complaint to be barred, and1 does not disclose facts sufficient to remove such bar. Flanagan v. Ray, 149 Ark. 411, and cases cited.
Hence counsel for appellees seek to uphold the decree upon the theory that appellant is not.entitled to maintain this suit in equity. The complaint alleges that no administration was had upon the estate of G. J. Murphy, deceased, and that, upon the failure of the devisees named in the will to probate it, it became the duty of the appellant, as a creditor of the estate, to take out letters of administration with the will annexed, and probate her claim.
In answer to this contention, it need only be said that the claim of appellant was a contingent one, and could not have been probated until it became an absolute claim by the construction of the building by Guinn, the grantee of G. J. Murphy, in 1922. By the terms of the duebill Murphy was not to pay for his interest in the party wall until the building was constructed on his lot whereby the party wall was used.
In Bank of Hoxie v. Meriwether, ante p. 39, it was held that agreements of the sort in question in- this case'creáte a covenant running with the land, and that a charge is created in the nature of an equitable lien upon the lot upon which the wall was erected, . which is enforceable in equity against the grantee -of the contracting party when a building is constructed under the terms of the agreement.' The fact that the agreement of Murphy to pay Ms part of the construction of the party wall when a building was erected on his lot, constituted a covenant running -with the land1,' so that there existed1 an equitable lien against his grantee, is entirely independent of the liability of Murphy. Murphy became liable because he bound himself, by his contract, to pay for the party wall when a building was constructed upon his lot.
The fact that the agreement constituted a covenant running with the land shows that the claim of Shamblee against Murphy was a contingent one. Under the terms of the agreement Murphy was not to pay his part of the cost of the construction of the party wall until a building was erected on his lot. His contract created a debt payable only in the future, upon a contingency, and that was that he or his grantee should construct a building upon his lot, and thereby make use of the party wall. Hence Shamblee only had a contingent claim against the estate. Under the agreement, the construction of the building would make what was before a contingent claim an absolute one. Such act would fix the time of payment and thereby make the liability absolute. Hence if letters of administration had been taken out, appellant, as successor to the rights of Shamblee, could not have proved his claim against the estate of G. J. Murphy until after Guinn had constructed the building on the lot, in June, 1922.
• So long as it remains uncertain whether a contract will ever give rise to an actual liability, and there is no means of removing the uncertainty by calculation, such contract is not provable as a debt against the estate of the contracting party. Walker v. Byers, 14 Ark. 246; Burton’s Admr. v. Lockert’s Ex’ors., 9 Ark. 411; and Evans v. Hoyt, 153 Ark. 334.
As we have already seen, Guinn did not construct the building on the lot until June, 1922. The present suit was commenced on the 15th dav of May,.1923. G. J. Murphy died on June 9, 1917. Thus it will be seen that appellant brought her action within ten months after it accrued and within less than seven years after Murphy died. Hence it cannot he said that she was guilty of laches in asserting her rights.
Another objection is that equity was not the proper forum in which to bring the suit. We cannot agree with counsel in this contention. The right of a creditor to proceed in equity against the heirs or devisees of a decedent who have received his estate, for a satisfaction of his claim, after the time limited for'probating it, is well settled in this State. Hall v. Breiver, 40 Ark. 433, and Wallace v. Swepston, 74 Ark. 520.
No exceptions were taken to the decree in the chancery court, and appellees insist that, without such excep.tion, no objection can be properly raised to it in this court. The rules of chancery practice do not require that exceptions should be taken to the various rulings of the court made in the progress of the cause, or to the final decree itself. The entire proceedings are matters of record, and appeals from the chancery court to this court are tried de novo without the taking of technical exceptions. Lemay v. Johnson, 35 Ark. 225; Western Coal & Mining Co. v. Hollenbeck, 72 Ark. 44; and Fletcher v. Simpson, 144 Ark. 436. To the same effect see 3 C. J., par. 808, p. 908.
The result of our views is that the decree will be reversed, and the cause remanded with directions to overrule the demurrer and to enter a decree in accordance with this opinion.
