Baum v. Ingraham

• Decision Date: 15 December 1919
• Docket Number: 55
• Citation: 216 S.W. 704,141 Ark. 243
• Parties: BAUM v. INGRAHAM
• Court: Arkansas Supreme Court

216 S.W. 704

141 Ark. 243

BAUM v. INGRAHAM

No. 55

Supreme Court of Arkansas

December 15, 1919

Appeal from Sebastian Chancery Court, Fort Smith District; J. H Vaughan, Special Chancellor; reversed.

Decree reversed and cause remanded.

T. P Winchester, for appellants.

1. The court erred in not taking into account the unassigned dower of the widow. Ingraham was the real purchaser of the land at the sale.

2. The filing of the mandate of this court was in effect the beginning of a new suit and notice was necessary and was not given. The sale of the lots subject to the dower interest was erroneous. Kirby's Digest, §§ 5776-5785.

The appellee, pro se.

1. The law was followed as to filing the mandate, notice, etc. Kirby's Digest, § 6174, as modified by subsequent statute. The mandate was not a reversal but an affirmance but appellants had ample and due notice. Section 1236 does not sustain appellants' contention as to notice.

2. There was no error in the sale or report of the commissioners and none in the decree as to partition. The fee was decreed to be partitioned subject to the dower estate, and that decree was affirmed by this court.

3. The commissioner's sale was properly subject to dower, as held by this court on former appeal.

4. As to the reason of the commissioners, the case in 90 Ark. 500 is not applicable. 49 Ark. 104; 76 Id. 146.

5. Equity will not disturb a decree upon technicalities where substantial justice has been done as here and the matter is res judicata. 72 Ala. 190; 30 Cyc. Pl. & Pr. 178; 26 Ill 504; 32 Iowa 399; 75 Me. 418; 112 Mass. 753; 3 Sandf. (Va.) 264. The rule is different where dower has been assigned. 41 N.C. 392; 30 Cyc. P. & L., p. 180. Justice has been done.

OPINION

HART, J.

This is the second appeal in this case. The opinion on the former appeal was delivered on October 21, 1918, and is reported in 136 Ark. 101, under the style of Ingraham v. Baum. This suit was originally brought in equity by William and Marguerite Baum against Lee H. Ingraham to set aside a probate sale to certain lots at which Ingraham became the purchaser at private sale and which the plaintiffs allege they had inherited from their father. The father of the plaintiffs died owning three lots in the city of Fort Smith, Arkansas, being the property in controversy. His widow removed to the State of Oklahoma with her children and married again. Their stepfather was appointed guardian for the children and procured an order of the probate court for the sale of the minor's interest in the land at a private sale. Lee H. Ingraham became the purchaser at the sale, and the sale was approved by the probate court, although it was made privately and no appraisement as required by the statute had been made. The dower of the widow was not assigned to her, and she conveyed it to Lee H. Ingraham. Mary Baum, the oldest child, conveyed her interest to Ingraham when she became of age. A mistake was made in the deed as to the description of her interest, and reformation of the deed was sought.

The chancellor held that the sale of the minors' interest in the land was void because it was made at a private sale. The chancellor also reformed the deed from Mary Baum so as to recite that she had conveyed all her interest in the land to Ingraham. The decree of the chancellor in both of these respects was affirmed in the Supreme Court. The chancellor also made a finding in regard to betterments, and the only objection made to the finding in this respect by either party on appeal was that the chancellor had made a mistake in his finding as to values, and this court held that the finding of the chancellor in this respect was not against the preponderance of the evidence and was therefore affirmed. The opinion also recited that the complaint contained a prayer for the partition of the land and that this was ordered subject to the widow's claim of dower and the lien for betterments. This court said that this was the proper order to make, inasmuch as the chancery court had power to grant full relief.

Upon remand of the case commissioners were appointed to make partition according to the respective interests of the parties and subject to the defendant's lien for betterments.

It will be remembered that the father of the minor plaintiffs died leaving a widow and three children, all of whom were minors. The widow conveyed her unassigned dower to the defendant Ingraham, and the oldest child conveyed her interest to him as soon as she became of age. Upon the remand of the case the chancery court first appointed commissioners to partition the land according to the respective interests of the parties. The commissioners reported that the land could not be divided without...