87 Ark. 232 | Ark. | 1908
Lead Opinion
(after stating the facts). 1. So far as the appeal in case No. 143, designated in the statement of facts as the Turley case, is concerned, the decree must be affirmed because it shows that the case was heard upon certain testimony which is preserved in the record and the oral testimony of various witnesses which is not made part of the record. There is no bill of exceptions preserving the-oral testimony, and the presumption is that, the oral testimony would sustain the decree. It is not contended that the complaint does not state a cause of action or that the decree is beyond the issues. This subject is discussed in the case of Rowe v. Allison, ante p. 206.
Decree affirmed.
2. So far as No. 135, the Stephens casé, is concerned, the record is complete, and enables the court to dispose of it upon its merits. If it be conceded that the testimony adduced supports the allegations that Stuckey was a mere conduit through which the title passed from Mrs. Bach, as administratrix, to Mrs. Bach, individually — a point argued at some length — yet plaintiffs’ (appellees’) evidence lacks an essential element to enable them to recover in a court of equity. In the case of Crawford County Bank v. Bolton, ante p. 142, the authorities are reviewed and the principle declared that the purchase by an administrator at his own sale is voidable and not void. The sale of the property was confirmed on the 22d day of October, 1901, and a deed from Stuckey to the administratrix made on the 24th of October, 1901. Thereafter the administratrix married, and afterwards died, leaving a will in which she devised the property to her second husband, and he sold the same for value to Stephens on the 7th day of September, 1905.
Although the court found that Stephens had knowledge of the claim of the Bach heirs, still it is an undisputed fact that he was a purchaser for value, and went into possession under his purchase. This suit was brought on the 25th of October, 1905.
In addition to the facts stated in the statement of facts, Mr. Stuckey’s testimony is undisputed that Mrs. Bach, through her attorney, bid on both the lots at the administrator’s sale, and one of them was struck off to her, but her bid was withdrawn, and Stuckey’s bid then was accepted. It is also established that the purchase price was paid by the administratrix, and was used to pay the debts of the estate. It is evident that the heirs of Bach knew from the time of the sale of the purchase by Stuckey, and immediately thereafter they had knowledge, or means of knowledge, that he conveyed to the administratrix, and that the money was paid into the estate. All the facts that have been brought into evidence in this case were known to them at that time, or by reasonable diligence could have been known to them.
Chief Justice English, for this court, said: “But where the statute is not relied on as a defense, or where there is no statute of limitation, a court of equity will not aid in enforcing stale demands, where the party had been guilty of negligence, and slept upon his rights. The chancellor refuses to interfere after an unreasonable lapse of time from considerations of public policy, and from the difficulty of doing entire justice when the original transactions have become obscured by time, and the evidence may be lost. [Citing authorities.] No precise rule, applicable to all cases, as to what lapse of time will constitute a demand a stale one, in the sense above indicated, can be declared. Each case must, to some extent, depend on its own circumstances, and will be construed or modified by them, and by analogy to other known and settled rules of law.” Wilson v. Anthony, 19 Ark. 16. See also Cook v. Martin, 75 Ark. 40.
To come to the precise point of this case, the principle controlling it is thus stated: “It follows that interested persons are not confined to the remedy of avoiding the sale, but have the right to elect whether they will have the sale set aside or ratify it and hold the representative as trustee for the value or price. The right to have the sale set aside must be exercised within a reasonable time after the irregular purchase has become known to the person seeking its avoidance, as acquiescence in the sale for a long time will create a presumption of ratification.” 18 Cyc. 772.
Mr. Justice Scholfield for the Illinois court said: “Numerous cases have been decided by this court where delay for a -much less period than that fixed by the statute of limitations has been held to preclude the right of the party to bring the suit. In such cases, it is said, courts of equity act upon their own inherent doctrine of discouraging, for the peace of society, the prosecution of the-suit; and no general rule can be laid down for the guide of the court in every case.” Williams v. Rhodes, 81 Ill. 571. And in that case a delay of five years and one month was held unreasonable.
In the recent case of Brinkerhoff v. Brinkerhoff, 80 N. E. (Ill.) 1056, where the facts are strikingly similar to those at bar, and the delay about the same as in this case, the court said: “Moreover, the sale was voidable, and while laches from delay cannot arise until knowledge has been acquired by those who are charged with it, and a party is not held to the same diligence to discover fraud where the person charged therewith is in the relation of trust and confidence which requires him to' disclose the truth to the other, yet it is plain that appellants, from the day of the sale, knew that Taylor had advanced money for the loan. There is nothing to show that there was any diligence, until after his death, to find out as to his actual interest in the land. Henry Brinkerhoff remained in open, notorious possession, controlling and managing the land, from the time of the sale. So far as this record discloses, Taylor Brinkerhoff never claimed that he had any interest in it of any kind or nature. His brothers and sisters never asked him what his interest was. There is no reason to suppose, from his talk with them as to advancing the money, that he would have concealed the actual state of affairs, had inquiry been made.”
So in this case there is absolutely no fact now «brought to the court that could not have ‘been brought to the court the day after the deed of Stuckey to Mrs. Bach was executed. In the meantime, the property passed into the hands of Mrs. Bach during her lifetime, and to her second husband as her devisee, and finally into the hands of third parties before- action was taken — and the time which has elapsed is over four years. The court holds the time is unreasonable in view of the situation of all the parties and the changing circumstances, and that this lapse of time has intjicated an acquiescence in the receipt of the purchase money by the estate, and that it is too late now to order its restitution and in lieu thereof the recovery of the property by the heirs.
The judgment is reversed, and the cause remanded with directions to dismiss the complaint.
Rehearing
ON REHEARING.
Opinion delivered September 21, 1908.
Appellee asks for a rehearing, and the first matter presented is a consideration of the facts constituting laches. The court has carefully considered the argument made, and it fails to carry conviction.
In addition to this argument, it is said that one of the plaintiffs was a minor when the transaction occurred, and is still a minor. It is argued that a minor is not 'to be deprived of his inheritance on the ground of laches, and authorities are cited to that effect. Counsel say: “As the court does not allude to his minority in the. opinion, we are convinced that in the stress of the adjourning hours the court overlooked -it.” A reexamination of the abstracts and briefs shows that counsel on both sides overlooked this fact, if it is a'fact. It is not mentioned in either the abstracts or the briefs, nor is it mentioned in the transcript other than in the style of the .complaint, which contains the names of all of the plaintiffs, including “Peter Bach, minor, by his next friend, Elizabeth Lockard,” but there is neither allegation nor evidence that Peter Bach is a minor. •
Laches was pleaded in the answer and argued at length in the brief for appellants, and the first time that it is claimed that one of the parties is a minor and unaffected by laches is in the motion for rehearing.
The motion for rehearing is denied.