Simpson v. Biffle , 63 Ark. 289 ( 1896 )

BaTTI/S, J.

On the first day of April, 1893, J. S. Simpson was, and at all times since has been, a citizen and resident of the State of Arkansas, and the head of a family. During all this time he and his family resided upon lots 10 and 11 in block 5, in the town of Rector, in Clay county, in this state. The value of these lots and the improvements thereon did not exceed the sum of $2,500, and the area thereof did not exceed one-fourth of an acre. Previous to the time he entered into the possession of the lots, the Peters Shoe Company recovered a judgment in the Clay circuit court, at the August, 1892, term thereof, against him for $580. At the August, 1893, term of the same court, J. W. Scuddar & Co. also recovered a judgment against him for $1,262.21. G. B. Oliver, who is an attorney at law, controlled both these judgments, and in January, 1894, caused an execution to be .issued on the judgment in favor of the Peters Shoe Company, and placed it in the hands of R. B. .Hancock, sheriff of Clay county, who levied upon the lots occupied by Simpson, and advertised the same to be sold on the 17th of February, 1894, to satisfy the execution. On the day of the sale Oliver caused an execution ■to be issued on the judgment in favor of J. W. Scuddar & Co., and placed it in the hands of the same sheriff. The lots were sold on the day fixed, and H. H. Down-man, a member of the firm of J. W. Scuddar & Co., bid the sum of $2,000 for them, and he, being- the highest bidder, became the purchaser thereof. He thereupon paid the $2,000 to the sheriff. Scuddar & Co. then demanded of the sheriff that he levy the execution in their favor on the sum of $1,316.68, the balance of the $2,000 remaining in his hands after the satisfaction of the execution in favor of the Peters Shoe Company, which he did, upon their giving a bond of indemnity, and immediately, upon the day of sale, paid it to them.

On the 31st day of July, 1894, Simpson instituted an action against B. B. Biffle, clerk of the Clay circuit court, R. I/. Hancock, sheriff of Clay county, and James W. Scuddar & Co., in the said court on the equity side, and alleged substantially the forgoing facts, and that the lots sold constituted his homestead, and that he had tendered to the clerk and Scuddar & Co. $660 to redeem the property from the sale, and each of them had refused to accept; and offered to pay in court any sum necessary to redeem his homestead, provided he was only required to pay the judgment in favor of the Peters Shoe Company, and interest, penalty, and costs; and asked that the clerk and Scuddar & Co. be required to accept the $660 in redemption, or, in the event he is not entitled to redeem, that a judgment be rendered in his favor against Scuddar & Co. for the amount received by them. The defendants answered, and did not deny that $660 was tendered to the clerk and Scuddar & Co.; but it does not appear in the pleadings or evidence when the tender was made.

The foregoing facts were proved at the hearing, and the deposition of Simpson was read, in which he deposed that his wife purchased the lots sold, and paid $150 for them; that he erected a brick building thereon for a residence, and expended in its construction $1,300 of his own money, -and that his wife contributed the remainder of the cost of the same, less $400; that fourteen rooms of the building were at one time rented as a hotel, and the remainder was occupied by him and his family; that he intended, when he built it, to use it as a hotel, but was unable to furnish it, and was compelled to rent.

It was further proved that when the lots were levied on by the sheriff and before the sale, Simpson claimed them as a homestead, and filed a schedule, in which he stated that he purchased the lots, and occupied them as a homestead; and that the schedule was sworn to by him.

The court found that the lots were the homestead of Simpson, and that he resided upon them at the time of the rendition of the judgment in favor of Scuddar & Co., and that their judgment was no lien upon them, but that the one in favor of the Peters Shoe Company was; and that an amount equal to the sum paid to the latter company in satisfaction of the execution in its favor, and interest and penalty, had been tendered by Simpson in redemption. But the court, being of the opinion that so much of the $2,000 paid by Downman as remained in the hands of the sheriff after paying the Peters Shoe Company was subject to execution, nevertheless dismissed the complaint of Simpson, and rendered judgment against him for costs, and he appealed.

On the 19th day of April, 1895, H. H. Downman, who purchased at the sale under execution on the 17th of February, 1894, instituted an action of ejectment against Simpson and his wife to recover the possession of the lots bought by him at said sale. He alleged in his complaint that he acquired title to the lots in the manner we have stated. The defendants answered, and denied that the plaintiff was the owner of the lots, and alleged that the title thereto was in Annie Simpson, the wife of J. S. Simpson, and that A. B. Bason, in March, 1893, conveyed the lots to her by a deed, and that the name of J. S. Simpson, long after the execution- and delivery thereof, was inserted in the deed as a grantee therein; and that she was the owner of the lots in fee, and entitled to the possession thereof.

On motion of the plaintiff, the action was transferred from the Clay to the Craighead circuit court.

In the trial before a jury a deed executed by the sheriff of Clay county to the plaintiff, conveying to him the lots in controversy, was read as evidence; and it was shown that he acquired title in the manner before stated. The deposition of plaintiff was also read, in which he stated that he was the owner of the lots; that he did not know that Annie Simpson claimed to be the sole owner thereof, until he had paid the purchase money, or that the name of J. S. Simpson had been inserted in the deed after its execution and delivery, until after this action was instituted, and the first suit had been determined by the circuit court, and that he had the records examined as to the ownership of the lots before purchasing.

Annie Simpson testified in her own behalf as follows: “She purchased the lots in controversy, and paid for them with her own money. The deed was executed and delivered to her individually, and she kept it for some months in a drawer, among other papers. Simpson took it out, and had his name inserted as a grantee therein, and then' had it recorded. When it was returned from the recorder’s office, she discovered the change, but took no steps to correct it. She knew that her husband scheduled the property as his homestead. She read the schedule. She also knew that the property was advertised for sale under the Peters Shoe Company’s judgment, but took no steps to prevent it. She never assented to her husband having his name inserted in the deed, but made no objections to it in the presence of any one except him.”

J. S. Simpson testified substantially the same as his wife, and as follows : “He took the deed to a notary public, who certified to the acknowledgment thereof. With the consent of Eason, the grantor in the deed, his name was interlined therein, and he was made to appear as one of the grantees. It was then recorded. When he took it home, his wife ‘objected some,’ but took no steps to correct it. The reason he had his name inserted was that he was wanting to borrow money to furnish the house built on the lots, and had made application for it in his own name.. Afterwards he and his wife concluded to rent it, and not borrow. But they did mortgage it, sometime thereafter, to Adams, and the mortgage was recorded in Clay county.

“He sold a house and lot, which belonged to himself and wife, or to himself, he did not remember which, for $800, and used the money in paying for a brick house on the lots in controversy. In addition to this sum, he expended $500 of his own.money, and his wife about $400 of hers, in paying for the same.”

The deed from A. B. Eason to Annie Simpson was read as evidence; and it appeared on its face that it was executed to her and her husband; that is to say, Annie Simpson and J. S. Simpson.

The deposition of J. S. Simpson which was taken in the first mentioned suit, and the schedule filed therein, were read as evidence in the trial of this action for the purpose of contradicting Simpson.

The judge instructed the’ jury, over the objections of the defendants, as follows: “If you find from the evidence that A. B. Eason executed a deed to the lands in controversy to Annie Simpson, wife of the defendant, J. S. Simpson, and afterwards, and before the recording of the said deed, the name of J. S. Simpson was inserted therein, and the same was recorded with said interlineation, and she took no steps to have the same corrected on the record, or otherwise, and permitted the said J. S. Simpson to use and to treat the property as the property of herself and J. S. Simpson, and treated the deed, after the name of J. S. Simpson had been inserted, as a genuine conveyance to J. S. Simpson and herself; and that the plaintiffs purchased said lands at an execution sale without the knowledge of said interlineation, then you will find for the plaintiff.”

And the defendants asked and the judge refused to instruct the jury as follows: ‘‘The jury are instructed that if they find from the evidence that the defendant Annie Simpson purchased the land in controversy and took a deed of conveyance therefor in her own name, and the defendant J. S. Simpson, after the execution and delivery of the deed to her, changed the same by inter-lineation or adding the name of J. S. Simpson, as grantee, that would not vest any title in J. S. Simpson, and your verdict should be for the defendants.”

‘‘The jury are instructed that if they find from the evidence that the property in controversy was conveyed to J. S. Simpson and Annie Simpson, his wife, such conveyance would vest in them an estate in entirety, and an execution sale against the husband alone will not pass such a title to purchaser as will deprive the defendant Annie Simpson of the possession of the land during her lifetime. ”

And the judge modified the first of' said refused instructions by adding these words: ‘‘Unless you further find from the evidence that the said Annie Simpson treated the deed, after the name of J. S. Simpson had been inserted as a genuine conveyance to herself and J. S. Simpson,” and gave it as modified.

The jury returned a verdict in favor of plaintiff for the lots and assessed his damages at $100. Judgment was rendered accordingly; and defendants, after a motion for a new trial was filed and overruled, and exceptions were saved, appealed. .

Redemp* tion from execution.

Por the sake of convenience we have stated the facts, and will decide the questions, in the two cases mentioned, in one opinion.

The $660 tendered in the first action to redeem the lots was insufficient. According- to the ' evidence, the lots were sold for $2,000, and $1,316.68 were left in the hands of the sheriff after the satisfaction of the execution in favor of the Peters Shoe Company, making $683.32 held by the sheriff to pay that execution, which was larger than the amount tendered.

But J. S. Simpson insists that he has the right to redeem by paying the amount received in satisfaction of the execution in favor of the Peters Shoe Company and fifteen per cent, per annum thereon, and lawful charges. This contention is based upon the assumption that, the lots being his homestead, he was entitled to all of the purchase money remaining after the execution in favor of the shoe company was satisfied. Taking the assumption as true, it does not follow that he was entitled to a credit in the redemption of the lots for so much of the purchase money as he was entitled to according to the assumption. Under the statutes of this state, when any real estate, or any interest therein, is sold under execution, the debtor may redeem the same at any time within twelve months after-the sale by paying to the clerk of the court from which the execution issued the purchase money, with fifteen per cent, per annum thereon, and all lawful charges. In this case the real estate was sold for $2,000, and purchased by H. H. Downman in his own name, and ostensibly for his own benefit. He paid the purchase money to the sheriff; and $1,316.68 of it were appropriated to the payment of an execution in favor of the firm of Scuddar & Co., of which Downman was a member, which then became the property of the firm, or, if not the property, the firm became liable for it, and it could not be used as a set-off against any debt or liability to Downman in his individual right. Collier v. Dyer, 27 Ark. 478; Houston v. Brown, 23 Ark. 333. Consequently $2,000 and fifteen per cent, per annum thereon and lawful charges were necessary to redeem the lots, and Simpson’s tender and offer to redeem were insufficient.

Exemption of homestead. Nature of estate. Effect of renting- part. When surplus of homestead exempt.

As the judgment in favor of the Peters Shoe Company was rendered before the lots were occupied as a residence, it was a lien on them, and they were subject to be sold to satisfy the same. The occupation of them on a day subsequent to the rendition of the judgment did not relieve them of the lien. Reynolds v. Tenant, 51 Ark. 84. But they were occupied by Simpson and his wife, as a residence, at, before, and ever since the time the judgment in favor of Scuddar & Co. was rendered. Whether held by him as a tenant in common or by the entirety with his wife, he was entitled to hold them as a homestead free from all liens of judgment rendered and executions issued thereon while so held. Ward v. Mayfield, 41 Ark. 94; McGrath v. Sinclair, 55 Miss. 89. The fact that he rented a part, of the building on the lots as a hotel, and occupied the remainder, did not divest him of his right to hold them as a homestead. Gainus v. Cannon, 42 Ark. 503.

If the lots were the homestead of Simpson at the time they were sold under execution, he was entitled to the surplus remaining after the satisfaction of the execution in favor of the Shoe Company, and to use it in acquiring another homestead. Should he abandon or never entertain the intention so to use it, while it remains his property, it will become subject to execution or other process as his personal property. Mitchell v. Milhoan, 11 Kas. 617; Tillotson v. Wolcott, 48 N. Y. 188. Having been received and appropriated by Schud-dar & Co. to the payment of a judgment and execution in their favor, he was entitled to a judgment against them for the amount thereof and interest, provided the lots were his homestead at the time they were sold. Mitchell v. Milhoan, supra.

Estoppel by silence.

Finding- that the lots were Simpson’s homestead, the court, in the first action, erred in holding- that the surplus was subject to execution.

In the action of ejectment instituted by Downman, the court improperly instructed the jury.

When Fason conveyed the lots in controversy to Mrs. Simpson, he thereby conveyed to her' all the interest and title he had in them. The subsequent insertion of the name of her husband in the deed with the consent of her grantor did not divest her of any interest which she had acquired. He had none to convey.

The mere failure of Mrs. Simpson to institute proceedings to correct her deed does not estop her from setting up the forgery of her husband, and claiming to be the sole owner-of the lots. Something more than mere silence or inactivity is needed to constitute an estoppel. As held by this court in Bramble v. Kingsbury, 39 Ark. 131, “equity does not require one having title to property to seek out a party who is about to purchase it from a supposed owner, and inform him of his title. All that it requires is that he shall do no act, nor be guilty of any misleading silence, or apparent acquiescence, by which another may be entrapped into a transaction which he would not have entered upon if he had been advised of the objection.”

As said by Mr. Bigelow : “It is not enough to raise an estoppel that there was an opportunity to speak which was not embraced; there must have been an imperative duty to speak. Nor is any duty generated by the mere fact that a man is aware that some one may act to his prejudice if the true state of things is not disclosed. To use an apt illustration of one of the judges, a man may become apprised of the fact that his name has been forged to a negotiable instrument, and so become aware that some one may be led to purchase the paper by supposing the signature to be genuine, and yet he is not bound to proceed against the forger, or to take any steps to protect the interest of others whose claims he may know nothing of. So long as he is not brought into contact with the person about to act, and does not know who that person may be, he is under no obligation to seek him out, or to stop a transaction which is not due to his own conduct, as the ' natural and obvious result of it. If the party is present at the time of the transaction, it may be necessary for him to speak, if speaking would probably prevent the action about to be taken; if absent, his silence (or other conduct) must at least be of a nature to have an obvious and direct tendency to cause the omission or the step taken. Only thus can a duty to speak arise.” Bigelow on Estoppel (5th Ed.), p. 595; Anderson v. Hubble, 93 Ind. 570; Meley v. Collins, 41 Cal. 663.

Conveyance to husband and wife.

A conveyance of the lots in controversy to J. S. Simpson and Annie Simpson, his wife, would vest ja them an estate in entirety, and a sale of the husband’s interest would not divest the wife of the right of possession during her lifetime. Branch v. Polk, 61 Ark. 388.

It follows from what we have said that the instructions to the jury in the action of ejectment were erroneous and prejudicial.

Although no question in the two cases demands it, it may be well to say that if Mrs. Simpson was the sole owner of the lots in controversy, the homestead was hers, and that her husband was not entitled to the surplus remaining after the satisfaction of the shoe company execution.

Por the errors indicated, the judgments in the two actions are reversed, and the causes are remanded for proceedings consistent with this opinion.