Abbott v. Johnston

• Decision Date: 28 May 1917
• Docket Number: 3
• Citation: 195 S.W. 676,130 Ark. 1
• Parties: ABBOTT, ADMINISTRATOR, v. JOHNSTON
• Court: Arkansas Supreme Court

195 S.W. 676

ABBOTT, ADMINISTRATOR, v. JOHNSTON

130 Ark. 1

No. 3

Supreme Court of Arkansas

May 28, 1917

Appeal from Sebastian Chancery Court, Fort Smith District; Wm. A Falconer, Chancellor; reversed.

Decree reversed, and cause remanded.

Read & McDonough, for appellants.

1. The action is barred by both the statutes of non-claim and limitations. The claim was never probated and hence barred by non-claim. Kirby's Digest, § 110, as amended by Act May 28, 1907; 9 Ark. 411; 14 Id. 246; 18 Id. 334; 23 Id. 604; 39 Id. 577; 97 Id. 492; 99 Id. 523; 112 Id. 6; 92 Id. 522; 94 Id. 60; 65 Id. 1. An administrator has no right to pay a debt not duly probated. 65 Ark. 1; 14 Id: 246.

2. There was no valid agreement between appellee, administrator and Johnston to extend the payment of the note. Payment of past due interest is not a sufficient consideration.

3. A vendor's lien can not be enforced after bar by the statute of non-claim. 92 Ark. 522; 28 Id. 267; 41 Id. 523, etc.

4. The five-year statute of limitations is a complete bar. There was no act of defendants, or either of them, to remove the bar and the administrator could not waive the bar. 65 Ark. 1; 23 Id. 604; 112 Id. 6, etc.

5. Plaintiff is not entitled to recover for taxes and assessments paid by him. The payment was voluntary. The note and claim were barred. 46 Ark. 167; 86 Id. 175.

Hill Fitzhugh & Brizzolara, for appellees.

1. A stronger case of estoppel and waiver than this can not be conceived. 92 Ark. 522 was not decided until Nov. 29, 1909. The case in 112 Ark. 6 is clearly distinguishable from this. This case falls within the rule in 18 Cyc. 472.

2. Plaintiff is clearly entitled to recover for the taxes and assessments paid by him, $ 137.88. He was not a volunteer, but paid same in good faith to protect his lien. 47 Ark. 62, 66; 99 P. 304.

OPINION

McCULLOCH, C. J.

Appellee, W. J. Johnston, instituted this action in the chancery court of Sebastian County, Fort Smith District, against the administrator and heirs of W. R. Abbott, deceased, to foreclose a vendor's lien on a certain tract or lot of real estate in the city of Fort Smith, which appellee conveyed to said decedent on February 28, 1907. The action was instituted as aforesaid on December 14, 1915, and the only defense offered is a plea of the statute of non-claims and of the five-years statute of limitations. The note in suit was for the sum of $ 1,000.00, executed by the decedent, W. R. Abbott, contemporaneously with the execution of the deed to him by appellee, and was due and payable two years after date. Abbott died in June, 1907, leaving a large estate, considerably encumbered, however, with debt, and still being the owner of the lot conveyed to him by appellee. The total consideration for the conveyance to appellee by Abbott was the sum of $ 2,500.00, of which $ 625.00 was paid in cash, and Abbott executed the note in suit, and also another note for the sum of $ 875.00, payable one year after date. Letters of administration on the estate of said decedent were duly issued by the probate court of Sebastian County to C. W. Jones, and he proceeded with the administration of the estate.

Appellee did not probate either of the notes against the estate, but the administrator paid the first note without the same having been probated, and also made two interest payments on the note in suit. The first interest payment was made by Jones on March 15, 1909, when he paid the interest for two years, and the second payment was made by the administrator on June 18, 1910, when he paid $ 80.00, the interest for one year, up to February 28, 1911. It is alleged in the complaint, and the evidence shows, that at the time those interest payments were made the administrator was endeavoring to conserve, as best he could, the interests of the estate of the decedent, and that he requested appellee not to institute proceedings to foreclose the vendor's lien on the land until the expiration of the period for which the interest was paid, and that appellee acceded to that request and agreed that he would not seek to foreclose his lien until after the period covered by the interest payments. The various payments made by Jones as administrator were reported to the probate court in his annual accounts current, and those accounts were approved by the court. Jones filed with the probate court his final account current as administrator on August 16, 1911, and in that account appears an item among the liabilities of the estate as follows: "W. J. Johnston, lien note, balance due $ 1,000.00 on note not probated;" and in the list of assets of the estate the lot purchased by the decedent from appellee was described in connection with the statement that "there exists a lien note of $ 1,000.00" In connection with his account the administrator tendered his resignation, and there is in the present record a copy of the order of the probate court showing the appearance of said administrator and the widow and heirs of said decedent, by their several attorneys, that the widow withdrew her objections previously filed against said account current, and that there being no other objections, the account current was approved by the court, and the resignation of Jones as administrator was accepted, and that S. H. Abbott, the present administrator in succession, was appointed.

It is thus seen that both the statute of non-claims and five years statute of limitations bar appellee's right of recovery, if applicable under the facts of the present case. Learned counsel for appellee insist that neither are applicable on account of the action of the administrator in making payments on the notes, notwithstanding the fact that the same had not been probated in accordance with the statute, and that by entering into an agreement with appellee for an extension of time, and the conduct of the heirs in consenting to the approval by the probate court of the account current filed by said administrator containing a report of said payments, the statute bar was waived. The Act of March 25, 1889 (Kirby's Digest, § 5399), relates only to limitation of actions to foreclose mortgages or deeds of trust, and has no application to actions to foreclose an equitable lien held by a vendor of real estate. Limitations on actions of the latter class come within other statutes. In the case of Linthicum v. Tapscott, 28 Ark. 267, it was held (quoting from the syllabus) that "a vendor's lien is a remedy or security, not a right of property, and does not vary the nature of the debt or take it out of the operation of the statute of non-claim, and can not be enforced after the bar of the statute has attached to the debt." The case of Allen v. Smith, 29 Ark. 74, seems to conflict with the rule announced in the case just cited, for the court there said that in proceedings to foreclose a vendor's lien it was unnecessary to probate the claim before the commencement of the suit. In the latter case, however, the court was considering, not the bar of the statute of non-claim, but the question of necessity for probating the claim before instituting an action to enforce the lien. It does not appear from the opinion whether or not the time for probating the claim against the estate of decedent had expired, but the court merely held that if the proper affidavit of non-payment was made before the commencement of the suit, it was not essential that the claim should first be allowed by the probate court. The apparent conflict, therefore, disappears upon a careful analysis of the ruling of the court in the two cases. At any rate, the law announced in Linthicum v. Tapscott, supra, is the settled rule in this State, and has been subsequently followed, and the same reasons stated in that case are given for the rule. For instance, in Waddell, Admr. v. Carlock, 41 Ark. 523, Mr. Justice EAKIN, speaking for the court, in distinguishing the rule of limitations with respect to suits to foreclose vendor's liens where the legal title had been conveyed to the vendee, and in cases where the vendor had merely executed a title bond and reserved the legal title as security, said:

"Although the legal title vested in a mortgage, and that retained by a vendor by...