State ex rel. Luck v. Atkins

53 Ark. 303 | Ark. | 1890

Cockrill, C. J.

I# Guardian’s, rights. The controlling question in this caséis settled by the judgment in Gilbert v. Neely, 35 Ark., 24. See, too, Harris on Subrogation, secs. 281 et seq.; Sheldon on Subrogation, sec. 89; Rice v. Rice, 108 Ill., 199. In that case the sureties in a deceased guardian’s bond, who were forced to make good the default of their principal, were held to be subrogated to the ward’s right to subject the homestead of the guardian to sale for the payment of the debt contracted in his fiduciary capacity, as against the widow of the deceased guardian. The heirs being necessary parties, the cause was remanded in order that they might be brought in; and the opinion states that, if they should prove to be minors, their right to the homestead would in like manner be subordinate to the sureties’ remedy to subject it to the payment of their demand. The rights of the parties in that case were governed by the constitution of 1868, while this cause is controlled by the provisions of the constitution of 1874; but there is nothing in the latter instrument to alter the rule established by the case cited. By section 3 of article 9 of the constitution of 1874, the homestead is not exempt from sale under process issued for the collection of money due in his fiduciary capacity from a trustee of an express trust; and guardians are specially mentioned as such trustees. In that respect the provisions of the latter constitution are specific in their application to this class of cases. As explained in the former case, the right of the minors to the homestead is a derivative right — they succeed to it as their ancestor possessed it, subject to the liabilities which legally existed against it in his hands. His death does not displace the superior right of the creditor to condemn the homestead for the satisfaction of a debt incurred by violation of a trust, any more 'than for the satisfaction of the specific liens to which the same provision of the constitution renders the homestead liable.

of “1 But it is argued that the sureties must pay the debt due to the wards before they can be substituted to the benefit of their right to condemn the homestead of their guardian. That a surety can not have subrogation till he pays the debt, is the established rule. McConnell v. Beattie, 34 Ark., 113. But equity abhors a multiplicity of suits, and adjusts the rights of parties without circuity of action when it is feasible to do so. The parties to whose rights the sureties in this cause would be substituted on payment of the debt are the plaintiffs who are seeking its collection; and the only means by which the sureties could reimburse themselves after payment would be by sale of their principal’s homestead, the right to the enjoyment of which the law has cast upon the plaintiffs. It would be unreasonable to require the sureties first to pay the plaintiffs the debt their father owed them, and then sue them to have the money back again. Dugger v. Wright, 51 Ark., 235. The assets of their father’s estate have been exhausted in the course of administration; they are the sole heirs; and the value of the homestead exceeds the amount of the debt due. Prima facie, therefore, it is not to their interest to sacrifice the homestead. They may elect to collect the debt at the sacrifice of the homestead, but they cannot collect the debt and retain the homestead.

3- Decree pro con fes so against 0”fs.nt 1Serrone' The cause was submitted upon the pleadings without r r o proof, and, there being no answer to the cross-complaint, it was taken as confessed, and a decree entered against the interest of the minors. That was erroneous. There must be an answer for the infants, and proof of every material allegation prejudicial to their rights, before the rendition of judgment against them. Pinchback v. Graves, 42 Ark., 222; Driver v. Evans, 47 Ark., 300.

For this error the judgment is reversed, and the cause will be remanded for further proceedings.