James v. Gibson , 73 Ark. 440 ( 1904 )

McCurroch, J.,

(after stating the facts.) Much labor and research has been expended by counsel on both sides in presenting and discussing the effect of the laws of Tennessee and the judgments and orders of the probate court of Shelby County in that State, where the administration upon the estate of D. E. Gibson, S'r., was had and the settlements of the executrix and the executor were made, but we do not consider those questions at all material or controlling in this case.

• Whatever may have been the effect of those proceedings, we think that all inquiry concerning alleged irregularities or frauds perpetrated there are concluded by the allowance in the probate court of Crittenden County in favor of appellee D. E. Gibson against the estate. That allowance was a judgment of a court of competent jurisdiction, and all parties are bound thereby, unless fraud be shown in the procurement thereof. The fraud which would vitiate the judgment must have been not alone in the original cause of action upon which the allowance was obtained, but that practiced in the procurement of the judgment. Womack v. Womack, ante, p. 281; Scott v. Penn, 68 Ark. 492; 1 Black on Judg. § 321; Fears v. Riley, 148 Mo. 49; Zellerbach v. Allenberg, 67 Cal. 296.

The controlling question for determination in the case is whether the creditor, D. E. Gibson, is barred by long delay, unexplained, from proceeding to subject the lands of the testator, in which appellants have an interest in remainder, to the payment of his alleged debt.

■ The proof shows that he waited fourteen years, without explanation or excuse for the delay, after the death of the testator, before taking any steps toward the sale of the lands, or even causing administration to be commenced in the State, meanwhile holding possession of the lands, enjoying the rents and profits thereof, and without applying any part of the same to the payment of the debts of the estate, as it was his plain duty to do. By the terms of the will, the personal propery in Arkansas, as well as the rents and profits of the lands, should have been applied to the payment of debts. As remaindermen, appellants had no interest in the rents of the farm as long as the life tenant held possession, further than to have the same applied upon the debts of the estate in accordance with the terms of the will'until the estate .should be relieved from debt. They had the right to presume that the life tenant, who as one of the executors of the will held possession of the lands in Arkansas, was properly executing the trust by so applying the rents. Appellee D. E. Gibson purchased the outstanding life estate of the widow Emma C. Gibson in 1883, and thereafter held possession of the lands, enjoying the use thereof, and also took possession of all the personalty in Arkansas, none of which he applied on the debts of the estate. He should have done this, and applied at an earlier date for an order for the sale of the lands for -the payment of the remaining part of the debts, if any.

The rule is well established in this State that real estate is assets in the hands of the executor or administrator for the payment of the debts, as far as needed for that purpose, after the personal property has been exhausted; yet the right of creditors to enforce payment out of the lands must be exercised within a reasonable time. Mays v. Rogers, 37 Ark. 155; Graves v. Pinchback, 47 Id. 475; Brown v. Hanauer, 48 Id. 277; Killough v. Hinton, 54 Id. 65; Roth v. Holland, 56 Id. 633; Brogan v. Brogan, 63 Id. 405; Black v. Robinson, 70 Id. 185.

It has been held that seven years’ delay, without reasonable excuse, is sufficient to bar the right, and it is immaterial whether the delay occurred before or after the administration commenced. Roth v. Holland, supra.

The reason for this rule is stated in Mays v. Rogers, supra, and reiterated in the later cases, to be that “this charge upon the real estate is not a perpetual one, which may be enforced by the administrator after any lapse of time. The heirs should not be forever deterred from making improvements on the property, or prevented from selling it, by the possibility that it may be sold for the debts of the estate.”

It is contended in behalf of appellees that the doctrine established by these cases does not apply here because there was no possession adverse to the administrator or executors, and that this is not a contest between the heirs or devisees in possession and the administrator or a purchaser from him. This contention is not well founded, for in Brogan v. Brogan, supra, -the administrator had- been in possession all during the long delay, and this court, finding the delay to have been without reasonable excuse, applied the rule as established in the other cases.

The rule is not an application, strictly, of the equitable doc-' trine of laches, for it lacks some of the elements of that doctrine, nor of the statute of limitation, though it is applied in cases at law as well as in equity, but it is sui generis, rather an application of the statutory period of limitation to the equitable doctrine of laches in part, so as to prevent the abuse by- creditors of the right to enforce demands against the lands of a decedent after unreasonable delay.

We think that the possession of the excutor during the long delay affords, under the circumstances of this case, all the more reason for the application of the rule. It appears reasonably certain, from the proof in the case, that if the excutor had applied the personal property in Arkansas and the rents of the farm to the payment of the debts of the estate, instead of speculating upon the property by undertaking to hold and operate the farm, the debts could have been paid off or greatly reduced. Not to have done so is sufficient, with the long delay without excuse, to demand the application of the doctrine so well established by the decisions of this court, and bar his right to have the lands sold for the payment of his alleged debt.

The sale made by the administrator had not been confirmed by the probate court, and the chancellor set it aside on account of the lapse of the order of sale without renewal thereof. No appeal was taken by appellees from the decree in that respect. But the learned chancellor declared a lien upon the land in favor of appellee Gibson for the amount of his alleged debt allowed by the probate court, and ordered a sale by the commissioner of the court. In this he erred.

The court of equity, having assumed jurisdiction of the subject-matter of the litigation, should administer proper relief by preventing any further proceedings looking to a sale of the lands. Therefore the cause is reversed and remanded, with directions to enter a decree perpetually restraining the appellees, D. E. Gibson and C. G. Fox, the administrator, from further proceedings to subject the interest in remainder of appellants in the lands described to the payment of said probate allowance of appellee D. E. Gibson.

Hire, C. J., dissents upon the ground that, in his opinion, there is not sufficient fraud shown to set aside the sale of land made under an unreversed judgment of the probate court. The delay was a good defense against the order, but not a fraud sufficient to set it aside on a bill of review.