Ex parte Tipton , 123 Ark. 389 ( 1916 )

Hart, J.,

(after stating the facts). It is contended by counsel for appellant that the probate sale of the homestead upon the application of the guardian was valid under the principles announced in Merrill v. Harris, 65 Ark. 355. If is further contended that the homestead right of the minor ceased when the sale was made and that the homestead then fell back into the residuum of the estate and became subject to administration and sale for the payment of decedent’s debts. So before proceeding to a discussion of what was decided in the case of Merrill v. Harris, it may be well to note the state of our laws on the subject at the time of the decision. Article 9, section 3, of the Constitution of 1874 provides that the homestead of any resident of this State who is married and the head of a family shall be exempt from levy and forced sale except in certain, enumerated cases. Article 9, section 6, reads as follows:

“If the owner- of a homestead die, leaving a widow, but no children, and said widow has no separate homestead in her own right, the same shall be exempt, and the rents and profits thereof shall vest in her during her natural life, provided that if the owner leaves children, one or more, said child or children shall share with said widow and be entitled to half the rents and profits till each of them arrives at twenty-one years of age — each child’s rights to cease at twenty-one years of age — and the shares to go to the younger children, and then all to 'go to the widow, and provided that said widow or children may reside on the homestead or not; and in case of the death of the widow all of said homestead shall be vested in the minor children of'the testator or intestate.”

(1-2) It is a cardinal rule of construction that different sections of the Constitution bearing on the same subject should be read in the light of each other. When this is done, it is manifest that the framers of the Constitution meant that it is the land itself which constitutes the homestead and not the mere right of occupancy that is exempt from levy and sale. It is equally evident that the framers of the Constitution intended to extend to the widow and children until their homestead rights ceased, the same exemption that was given to the husband in his lifetime. In the case of Nichols v. Shearon, 49 Ark. 75, the court in discussing the attempted sale of the homestead by an administrator to pay debts of the decedent’s estate, said: “The sale of the homestead was void. The defendant was aware of all the circumstances which gave the plaintiffs a homestead right in the premises. He must take notice of their right to receive the rents during their nonage and that the land in the meantime is protected from sale for. the ancestor’s debts.”

The court also held that a widow being under no disability may abandon the homestead and surrender and forfeit all claims to it and when she does so it becomes assets in the hands of the administrator for the payment of debts of the estate. Garibaldi, Administrator v. Jones, 48 Ark. 230.

(4) A minor being under disability, can not waive his right to a homestead during minority. He can neither waive nor abandon his homestead rights. Altheimer v. Davis, 37 Ark. 633; Booth v. Goodwin, 29 Ark. 633. 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. Bond v. Montgomery, 56 Ark. 563.

In Merrill v. Harris, 65 Ark. 355, the opinion 'begins by the question, has a probate court, in which a guardianship of minors is pending, the power to order the sale of the homestead left them by the parent, for the benefit of said minors? A ¡brief statement of facts follows in Which it is stated that the owner of the homestead left no other property and no debts and no children except her minor sons. The court after stating that the question is a new one dn this State reaffirms the doctrine that the homestead, during the holding of the widow or the minority of any of the children, can not be sold to pay the debts of the father’s estate. The court then says, the question is, can the probate court in any case lawfully order the sale of such homestead for the benefit of the’ minor children who enjoyed it as a descended or transmitted homestead from the deceased homesteader?

The court then makes a quotation from a Mississippi case but it will be noted that in Mississippi and Kentucky the homestead may be sold subject to the rights of occupancy by the widow and children if a sale is necessary to pay the debts of the husband. In this State it is not the mere homestead right of occupancy which is exempt from levy and sale but it is the ground occupied as a residence. Therefore we have held that there can be no sale of the homestead for the payment of debts until the termination of the homestead interest. Continuing the court said: “Following' the argument of the author, suppose, as in the case at bar, there were no debts, no other property, and that there was but one child, and he or she, as the case may be, the only child and heir; and, upon that, suppose that the rents and profits of the homestead place were nothing, or not enough to support and educate the child, and that there was no one willing or bound to occupy the premises with the minor, and thus assist in his support and education. In other words, suppose the homestead right was unavailable or utterly inadequate for the purpose. Can it be the law that the probate court, or the court of general, original and exclusive jurisdiction of minors and their estate, can not sell the property and thereby give it the only real value it has so far as the minor is concerned? We can not think such is the law. The Constitution does not, in terms, seek to do more than protect from the grasp of creditors. There is neither expressly nor by implication a restriction upon the powers of the probate court in respect to this class of the property of minors. The case we have supposed presents the question fairly, and in such a case we can not see how but one answer can be given. If one case could exist wherein the probate court would possess the power, that is all that is necessary to solve the question. To carry the discussion further than that would simply be to discuss questions pertaining to the proper or improper exercise of the court’s 'discretion in the instances as they may arise, accordingly as the facts may determine. ”

It is contended by counsel for appellant that the latter part of the quotation bears out their contention that the probate court in its discretion in all cases may sell the homestead of the minor and that its action in making the sale is only subject to review for an abuse of its discretion or its improvident exercise. We can not agree with their contention.

, Law is not an exact science and all opinions should be considered in the light of the facts to which they apply and with due regard to other decisions of the same court on the same subject. That is true for the reason that the passing from that which is lawful to that which is unlawful is frquently by almost imperceptible degrees.

It will be noted that the court both in the statement of the case .and in its argument in the opinion states that there were no debts and the question is propounded, can the probate court in any case lawfully order the sale of the homestead of the minor? The reading of the whole opinion makes it manifest to our minds that the words “no debts” were an essential element of the opinion and that they were intended as expressing one of the real grounds of the decision.

(5) The rule invoked by counsel for appellant would either result in a ruinous sacrifice of the homestead of the minor or the sale by the guardian at probate sale would be a vain and useless thing. As we have already seen, it is the settled law in this State that the homestead can not be sold subject to the rights of occupancy by the widow and children, but it is the land itself which constitutes the homestead that is sold. The homestead then falls back into the residuum of the estate and becomes subject to administration. Such being the case, it is evident that in cases where there were debts the purchaser would get nothing and it would be a vain and useless thing to sell the minor’s homestead. If the right of the minor in the homestead ceased when it was sold a.t guardian’s sale and the homestead then fell back into the residuum of the estate subject to be sold for the payment of the debts of the intestate, it is obvious that no useful purpose could be served by allowing the guardian to sell it where there were debts. But it is said that an improvident exercise of the power could be corrected on appeal. Examples readily occur which show that this would not protect the interest of the minor. If .the minor should be too young to appreciate what was being done and had no friends interested in his behalf, the land might be again sold at an administrator’s sale for the payment of debts and it would then be too late to set aside the guardian’s sale of the homestead in a collateral attack on it.

(6) The better rule is to hold that the probate sale of the homestead by the guardian in cases where there are debts is absolutely void. As we have already seen the framers of our Constitution plainly intended to pre- • serve for the minor the homestead exemption of the parents after their death and to prevent the sale thereof for the debts of the parents during the minority of the children and it has always been the policy of this court to give such a liberal construction to the homestead laws as will best effectuate this humane intention of the framers of the Constitution. We think this result can best be accomplished by holding that the decision in Merrill v. Harris, supra, applies only to cases where there are no debts and that such holding is more in accord with the trend of our other decisions on the subject. Where there are no debts the homestead would sell for its full value, for the only question would be whether the court abused its discretion in making the sale and such question not being subject to review on collateral attack, the purchaser would pay full value for the homestead and the homestead rights of the minors would be fully preserved. The object of the homestead laws being to preserve the exemption of the parent from debts to the children during their minority, if there are no debts, there would seem to bo no good reason why probate courts might not order a sale of the homestead upon the application of the guardian where it was deemed to the best interest of the minor to do so.

It is evident the framers of the Constitution intended to extend to the minors during their minority the same exemption that was given to the parents; and the construction we have given does this, and also preserves to the creditors their rights, which can be exercised after the minority of the children has terminated.

(7) Therefore we think that the fact that there were “no debts” was a cogent reason for tfie decision in Merrill v. Harris. It is no answer to this to say that the creditor is not a party to the application of the guardian to sell the homestead and should not be bound by a finding of the court that there were,no debts. Purchasers at'such sales as well as at.administrator’s sales are required to take notice of the rights of the minors and for like reason, it may be said that creditors must take notice of the rights guaranteed the minors by the Constitution and it is not likely that a sale of the homestead could be made without their knowledge.

(8) We also think the judgment in the present case should be affirmed because there is no affirmative showing in the record of the guardian’s sale in the probate court that there were no debts. It is true as a general rule that the proceedings of a superior court with respect to jurisdictional facts, about which the record is silent, are presumed to be within the scope of its jurisdiction until the contrary is shown, but where special powers conferred are exercised in a special manner, not according to the course of the common law, or where the general powers of a court are exercised over a class not within its ordinary jurisdiction, upon the performance of prescribed conditions, no such presumption of jurisdiction will attend the judgment of the court. In such cases the facts essential to the exercise of the special jurisdiction ¡must appear upon the record. Oliver v. Routh, et al., 123 Ark. 189; Beakley v. Ford, 123 Ark. 383.

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.

In making the application we have also considered that cardinal rule of construction that provisions of the Constitution relating to the same subject must be read in the light of each other. When this is done, the section of the Constitution giving probate courts jurisdiction over guardians must be read in connection with that section of the Constitution relating to the homestead exemption of minors.

It follows that the court was right in denying the application of the administrator to sell the homestead of the minor, and the judgment will be affirmed.