Hart v. Wimberly , 173 Ark. 1083 ( 1927 )

(on rehearing). Since this case was originally submitted there has been a change in the personnel of this court, which has necessitated a reconsideration of the whole case on petition for rehearing, and a majority of the court as now constituted agree to the opinions herein expressed. The principal question arising herein is the jurisdiction, or power, of a probate court to order a sale of the minors' homestead for the payment of debts.

In September, 1910, J. H. Wimberly died, a widower and intestate, in Clark County, the owner of a rural homestead, with three minor children, Vivian, Dexie, and R. W. Wimberly, age 14, 12, and 8 respectively, and owing some small debts of no considerable amount. On October 10 following, a neighbor, W. E. May, was appointed administrator, and duly qualified. He thereafter, on October 19, 1911, applied to the probate court for an order to sell the lands of his intestate, incorrectly describing them, for the payment of debts probated against said estate, in which petition he stated "that the personal property belonging to the said estate is not sufficient to pay the debts." It is nowhere stated that the land described, for which a sale was asked, was the decedent's homestead, nor is any mention made of said minor children, but we assume that the application for letters of administration, which is not found in the record, correctly sets out the names and ages of such children. On the next day after the application was filed, October 20, the court granted the petition, and made all order directing the administrator "to sell the said land at the late residence" of deceased, on November 29, 1911, and to report his sale. Sale was had pursuant to the order, report was filed December 23 and approved, and deed ordered made to purchaser on payment of purchase price of $332.46 on January 15, 1912. Deed was made to M. B. Mullins, and, through mesne conveyances, to appellant, W. S. Hart. On a trial the court found all the facts against appellants, and decreed a cancellation of the sale above described and all subsequent deeds and deeds of trust in that chain of title as being void, and that appellees are the owners of said land; that appellants, Hart and Arkadelphia Milling Company, should pay R. W. Wimberly $100 for one-third value of timber cut, with interest, and that Evans, Stone and Wimberly recover from Hart and Nowlin-Carr Company $200, with interest, for oak timber cut, and that the said heirs recover from Hart $192 for pine timber sold to Marlar Lumber Company. The court set-off all claims of appellant Hart for taxes and improvements against the rents and profits. From the judgment against them Hart, Arkadelphia Milling Company and Nowlin-Carr Company have appealed.

The sale of the homestead of a minor by order of a probate court, for the payment of debts of the decedent, is void, as the probate court has no such jurisdiction. Such a sale is void for lack of jurisdiction under both the Constitution of 1868 and 1874. See art. 9, 6, 10, Const. 1874; art. 12, 3, 4, 5, Const. 1868. In the case of Bond v. Montgomery, 56 Ark. 537, 20 S.W. 525, 35 Am. St. Rep. 119, it is said;

"Under the Constitutions of 1868 and 1874 the probate court had and has no jurisdiction to order the sale of a homestead of a deceased person for the payment of his debts, during the minority of his children, or so long as his widow remains unmarried or does not abandon it, or shall not be the owner of a homestead in her own right. During this time the homestead is exempt from sale for the payment of the debts of the deceased owner. The order of sale in this case was therefore an absolute nullity."

In Slayton v. Halpern, 50 Ark. 330, 7 S.W. 304, Chief Justice COCKRILL said:

"The policy of exempting the homestead from sale after the death of the debtor for the benefit of the widow and minor children was continued by the Constitution of 1874, without abating the right as it existed under the Constitution of 1868 and the act of 1852."

In Ex parte Tipton, 123 Ark. 392, 185 S.W. 799, it is said:

"(4). A minor, being under disability, cannot waive his right to a homestead during minority. He can neither waive nor abandon his homestead rights. So that, at the time Merrill v. Harris was decided, it was settled in this State that, under the Constitutions of 1868 and 1874, the probate court had no jurisdiction to order the sale of a homestead of a deceased person for the payment of his debts during the minority of his children, or so long as his widow remains unmarried and does not abandon it, or shall not be the owner of a homestead in her own right. During this time the homestead is exempt from sale for the payment of the debts of the deceased owner. The order of sale in such cases is void."

Probate courts have "only such special and limited jurisdiction as is conferred upon them by the Constitution and statutes, and can only exercise the powers expressly granted and such as are necessarily incident thereto," as was said in Lewis v. Rutherford, 71 Ark. 218,72 S.W. 373; Beakley v. Ford, 123 Ark. 383,185 S.W. 796; and neither by the Constitution nor the statutes have they been given any such power. Indeed, the Legislature could not confer jurisdiction on such courts, as it would be in direct conflict with the Constitution.

In Griffin v. Dunn, 79 Ark. 410, 96 S.W. 191, the court said:

"The sale of the homestead by the administrator was void, because the court has no jurisdiction to order it."

There is no provision anywhere in the law of this State for all administrator to sell a minors homestead while a minor, for any purpose. The guardian may sell his minor ward's homestead for support and education, when necessary (Merrill v. Harris, 65 Ark. 355,46 S.W. 538, 41 L.R.A. 714, 67 Am. St. Rep. 929), but the administrator cannot do so. The administrator cannot sell the homestead subject to the homestead rights. Griffin v. Dunn, supra; McCloy v. Arnett, 47 Ark. 445,2 S.W. 71; Stayton v. Halpern, supra; Nichols v. Shearon,49 Ark. 75, 4 S.W. 167; Bond v. Montgomery, 56 Ark. 563,20 S.W. 525.

In Neely v. Martin, 126 Ark. 6, 189 S.W. 104, it is said:

"At the time of the sale of the land in suit by the administrator of Jesse Martin, to pay the debts of his estate, these lands constituted the homestead of his minor children, and the sale was therefore void." Rushing v. Horner, 130 Ark. 26, 196 S.W. 468; Johnson v. Taylor,140 Ark. 106, 215 S.W. 162; Turner Heirs v. Turner,141 Ark. 51, 216 S.W. 44.

Counsel for appellants substantially concede that the foregoing is correct, but contend that, the statute for the sale of land to pay debts having been complied with, and the sale approved by the court, the order of the probate court is not open to collateral attack. A complete answer to this is that there is no statute and could not be for the sale of land which is a homestead for the payment of debts. The order of the probate court is void ab initio. It is coram non judice, and is therefore open to collateral attack. A void judgment or order may be attacked collaterally Waggener v. Lyles, 29 Ark. 47; McDonald v. Ft. S. W. Rd. Co., 105 Ark. 5, 150 S.W. 135; Dalton, v. Bradley Lumber Co., 135 Ark. 392, 205 S.W. 695. There is some authority for holding that an action to obtain a decree declaring a judgment void ab initio is not a collateral attack. Hooper v. Wist, 138 Ark. 294,211 S.W. 143, citing 15 R.C.L. 838, par. 311; Stumpff v. Louann Provision Co., ante, p. 192. Moreover, this contention of counsel is contrary to the decision of this court in Beakley v. Ford, supra, where it is said:

"The order of the probate court under review contains no recitals that would bring it within the exercise of the jurisdiction conferred upon it by the statute. The probate court having no such common-law jurisdiction, and proceeding solely by virtue of statutory authority, its jurisdiction to exercise such authority must appear from the record, and will not be presumed. Gibney v. Crawford, 51 Ark. 34, [9 S.W. 309]; Hindman v. O'Connor,54 Ark. 627-43, [16 S.W. 1042]; Morris v. Dooley,59 Ark. 483-87, [28 S.W. 30]; St. L. I. M. S. R. Co. v. Dudgeon, 64 Ark. 108-10, [40 S.W. 786]. See also Willis v. Bell, 86 Ark. 473, [111 S.W. 808]."

In the case of Ex parte Tipton, this court said:

"In the application of this rule we think the record of the probate court in the matter of selling the minor's homestead upon the application of the guardian should show the fact that there were no debts, and, the record being silent on that point, the order of sale was void."

It must therefore appear from the record that the land of the decedent which is to be sold to pay debts is other than the homestead, and, this not appearing, was sufficient to advise a purchaser that he acquired no title. It appears from the order of sale and confirmation that the land to be sold was "at the late residence of J. H. Wimberly," which would be notice that it was his homestead. But that is unimportant, since it must affirmatively appear on the record that the land proposed to be sold for debts is not the homestead of the minor before the probate court can have any jurisdiction at all. A of a minor's homestead at a sale for the payment of debts cannot be protected because the proceedings appear regular for the sale of lands other than the homestead.

The main contention of counsel for appellant seems to be that this case comes within the curative provisions of the act of March 12, 1919, 181, C. M. Dig., as construed in Day v. Johnson, 158 Ark. 478, 250 S.W. 532, and Collins v. Harris, 167 Ark. 372, 267 S.W. 781. Neither of these cases involved the sale of a minor's homestead for the payment of debts. In Day v. Johnson the minor's homestead was not involved, as the land sold was not his homestead, and the effect of the holding in that case is that irregularities in the sale of a minor's lands for his education, when the sale is confirmed, are not open to collateral attack, and will be cured by the above statute. In Collins v. Harris the sale of the minor's homestead was involved, but by the guardian and not the administrator, and was "for the support, education and maintenance" of the minor, and not to pay debts, and it was there held that the act of 1919, above referred to, cured the defect in the petition in failing to allege that there were no debts due and unpaid by the deceased parent at the time of sale, as had been the ruling of this court prior to the passage of said act. It will therefore be seen that these decisions in no way conflict with the former decisions of this court on the jurisdiction of the probate court to order the sale of a minor's homestead to pay debts. The act of March 12, 1919, could not have the effect of amending the Constitution, as would be the result if the contention of counsel is correct. The Legislature cannot cure a proceeding made void by the Constitution, and no act that it passes can breathe vitality into a thing that is dead. The Legislature cannot do indirectly a thing directly prohibited by the Constitution.

The next question is the period of limitation, the contention being this action is barred by the five-year statute, 6946, C. M. Digest. The exact question was before this court on a like state of facts in Kessinger v. Wilson, 53 Ark. 400, 14 S.W. 96, 22 Am. St. Rep. 220, where Mr. Justice BATTLE, for the court, said:

"The land was set apart by the law to appellants, when their father died, as a home and means of maintenance during their minority. Until the younger of them reached the age of twenty-one years it could not have been lawfully sold to pay the debts of their father's estate or partitioned between them. Nichols v. Shearon,49 Ark. 75, 4 S.W. 167; Kirksey v. Cole, 47 Ark. 504,1 S.W. 778. It was not subject to sale, but might have been rented to raise means for their support. Until the younger reached his majority, it remained set apart as ``a place, a sanctuary, to which he or she might return to find shelter, comfort and security of a home' during his or her minority. As an entire homestead it remained the home of both. Although the land constituting it descended to them subject to be sold to pay the debts of their father's estate, it could not have been lawfully severed or diverted from the full occupancy and enjoyment by both of them as a home during the minority of either of them. Their homestead right was like a joint tenancy with right of survivorship. As each of them arrived of age, his interest in it expired. After the older reached her majority, the younger was entitled to the exclusive use and enjoyment of the land as a home until he became twenty-one years old, and then both became entitled to have and to hold as tenants in common, subject to the right of the administrator of Daniel Kessinger to have it sold to pay Kessinger's debts. Kirksey v. Cole, 47 Ark. 504, 1. S.W. 778. The homestead right or estate and the estate inherited in addition thereto were like two separate and distinct estates vested in different persons and following in immediate succession. Their right to the enjoyment and possession of the same did not exist at one and the same time and neither merged in the other. The former did not merge in the latter; for, in the event, the minor children would have lost the right to enjoy the homestead during their minority, and the land constituting it would have immediately become subject to sale for the payment of the debts of their father's estate, it being insolvent, and the quality of the homestead, like unto a joint tenancy, would have been changed by severance to tenancy in common. Greenleaf's Cruise on Real Property, vol. 6, marginal page 484, and cases cited. And the estate inherited from their father, being the larger, could not merge in the homestead. So they remained separate and distinct. As they could not have been held otherwise, appellants necessarily had two rights of entry upon the land, one when they became entitled to the homestead, and the other when the younger was twenty-one years old.

"The homestead right has expired, and the right to the possession of the estate inherited in addition thereto has accrued. The time which expired before the last right of entry accrued did not affect it. The statute of limitations did not commence running against it until John Kessinger was twenty-one years old. The rule is, where there are two separate rights of entry, the loss of one by lapse of time does not impair the other. It has often been held that ``a remainderman expectant on an estate for life or years, who had a right to enter because of the forfeiture of the tenant, is not bound to avail himself of the forfeiture, and his neglect to enter at the time does not bar him of his entry on the limitation of the estate of efflux of time or the death of the tenant.' According to Plowden, in Stowell v. Lord Zouch, 1 Plowd. 374, where there were three separate rights in the same person, he was entitled to the benefit of all of them the same as though they existed in three different persons. The maxim of the law is, ``Quando duo jura concurrunt in una persona, aequum est acsi assent in diversis.'"

Again he said:

"What statute prescribes the time within which an action for the recovery of the land must be brought after the last right of entry accrued? Appellees pleaded the five years' statute. That statute, as enacted, provides: ``All actions against the purchaser, his heirs or assigns, for the recovery of lands sold by any collector of the revenue for the nonpayment of taxes, and for lands sold at judicial sales, shall be brought within five years after the date of such sale, and not thereafter; saving to minors, persons of unsound mind and persons beyond seas, the period of three years after such disability shall have been removed.' Is it applicable to this case?"

After a lengthy discussion of the authorities he answered the question as follows:

"The words of the statute are, ``All actions * * * shall be brought within five years after the date of such sale, and not thereafter.' It is clear that it commences to run from the date of sale, and not thereafter, as it declares. As it begins to run at the date of the sale, it is difficult to understand how it can bar an action when the cause of it did not arise until more than ten years after the sale had elapsed. The sustainment of a contention to that effect would lead to the absurd conclusion that all rights of action against the purchaser of land sold at a judicial sale, arising after the lapse of five years from the date of sale, are barred at the very instant the cause of action accrues. This would be equivalent to a denial of the right to be heard at all in the vindication of such rights. It is manifest that the statute was never intended to be applied in such cases, but that its object was to require all parties to bring suits against purchasers at judicial sales within five years after the date of sale, for the enforcement of only such rights to recover the land sold as can be enforced in an action brought within that time, and to bar the recovery of such rights in any suit brought thereafter. It has no application to this action. The only statute of limitation at all applicable to this case is the seven years' statute."

This case has been cited with approval in the following cases, many of them relating to sale of the minor's homestead: Duke v. State. 56 Ark. 468, 20 S.W. 600; Gates v. Kelsey. 57 Ark. 526, 22 S.W. 162; Finley v. Hogan; 60 Ark. 502, 30 S.W. 1045; Killeam v. Carter,65 Ark. 70, 44 S.W. 1032; Collins v. Paepcke-Leicht Lbr. Co.,74 Ark. 87, 84 S.W. 1044; Gavin v. Ashworth, 77 Ark. 244, 91 S.W. 303; Griffin v. Dunn, 79 Ark. 411,96 S.W. 190; Martin v. Conner, 115 Ark. 365, 171 S.W. 125; Krow Neumann v. Bernard, 152 Ark. 110, 238 S.W. 19.

Since the youngest child, R. W. Wimberly, was only 22 years old when this suit was brought, it necessarily follows, from what we have said and from the foregoing authorities, that the action is not barred as to any of the heirs for the recovery of the land, the seven-year statute being applicable, which provides the action shall be brought within three years after arriving at age of twenty-one years.

Neither can the doctrine of estoppel be invoked by appellant from the fact that, while yet minors, two of them were paid their share of the money left from the sale of the homestead after paying the debts, and deposited with the clerk by the administrator. It would be a weak safeguard of the minor's homestead rights if the constitutional and statutory protection thrown around such rights could be destroyed by estoppel, as is claimed here.

We have examined the other questions raised, including the claim for betterments, and have reached the conclusion that the chancellor's decision is not against the preponderance of the evidence. He offset the taxes and improvements against the rents and profits, on conflicting evidence, and we are unable to say he was wrong in so doing. No error appearing, the decree is affirmed.