Bland v. Fleeman

• Decision Date: 01 July 1893
• Citation: 23 S.W. 4,58 Ark. 84
• Parties: BLAND v. FLEEMAN
• Court: Arkansas Supreme Court

23 S.W. 4

58 Ark. 84

BLAND v. FLEEMAN

Supreme Court of Arkansas

July 1, 1893

Appeal from Franklin Circuit Court in Chancery, Ozark District, HUGH F. THOMASON, Judge.

Decree reversed and case dismissed at the cost of plaintiffs.

U. M. & G. B. Rose and J. V. Bourland for Bland, et al.

1. Fraud. The payment to Parkes on a claim, never probated, of $ 1000 was an express violation of law. Mansf. Dig. sec. 103. The keeping open the administration for twelve years was in line and keeping with other fraudulent acts. 53 Ark. 232; Mansf. Dig. 206. Courts of chancery are still able to ferret out acts of fraud and relieve against them. 20 Ark. 527; 40 id. 407; 53 Ark. 232. The purchase of lot 3 before confirmation avoided the sale as fraudulent. 55 Ark. 85. It was also the homestead. 47 id. 445. Lot three was not inserted in the petition to sell, nor order of sale, and the court had no jurisdiction. The sale was void. 55 Ark. 562; 47 id. 218; 26 id. 257; 72 Ala. 7; 64 Mo. 518; 1 Story, 478; 11 Ark. 375; 1 Wall. 636.

2. The statute of limitations. As to whether a purchase by an administrator at his own sale is void or voidable, see 12 Am. & Eng. Enc. Law, p. 222, note; 44 N.Y. 237; 25 Ark. 306; 32 id. 619; 48 id. 489; 4 How. (U.S.), 557; notes to Hindman v. O'Connor, 13 Law Rep. An. 493. However, the law is well settled that the statute does not begin to run in favor of an administrator as against the heirs until he is discharged from his trust. 18 Ark. 495; 22 id. 473; 28 id 19; 42 id. 28; 48 id. 248. It would not begin to run until demand made, after his discharge. 22 Ark. 1; Wood on Lim sec. 200.

3. Laches. Under the facts of this case, laches cannot be imputed to the heirs. 2 Wall. 87; 2 Eden, 285; 6 Wheat. 481; 4 How. 503; 29 Ark. 591; 5 How. 276; 18 Wall. 493; 43 Ark 35; 107 Mass. 313; 11 Pick. 173; 28 Miss. 466; 22 Ark. 7; 46 Ark. 25; 48 id. 250. The heirs had every confidence in Fleeman--they had no suspicions. The sale as made never was confirmed. The purchases by Fleeman were concealed and were never submitted to the probate court for confirmation. To fix acquiesence on a party, it must appear that he knew the facts. 10 Ves. 428; 29 Ark. 135; 28 id. 64; 2 Selden, 268; Perry, Trusts, sec. 230; 1 Jac. & Walk. 67; 5 H. S. C. 627; 12 Vesey, 355; 5 Ball & B. 345; 16 Md. 456; 3 Stock. 23. Independently of peculiar circumstances, equity adopts as a bar the period which bars a suit at law. 3 Sumner, 486; 1 White & T. L. C. in Eq. 258. A trustee cannot set up an adverse holding against his cestui que trust. Perry on Trusts, sec. 863. His possession as administrator was not notice of any new right claimed by him. 51 Miss. 146. See also 12 S.Ct. 425. The law of constructive notice can never be so applied as to relieve a party from responsibility for actual misstatements and frauds. 14 Mich. 604; 90 Am. Dec 239; 84 id. 589; 115 U.S. 538; 21 Wall. 342; 111 U.S. 190.

J. E. Cravens and J. M. Moore for Fleeman.

1. No actual fraud is shown in the accounts and settlements. Chancery will not interfere to correct mere irregularities or errors. 50 Ark. 222; 48 Id. 547; 36 Id. 390; 39 Id. 257; 50 Id. 228; 51 Id. 16; 33 Id. 733. The transactions occurred many years ago, and if any cause of action ever existed, it is barred. 42 Ark. 491.

2. There was no fraud in connection with the sale and purchase of the land.

3. The omission of lot 3 from the petition and order of sale was a mere clerical omission, and did not render the sale void. The probate court acquires jurisdiction over the estate. 10 Ark. 549; 19 Id. 515-16. It proceeds in rem. 14 Id. 252-3; 11 Mass. 226; 2 Peters, 62. See cases 31 Ark. 74; 25 Id. 58; 30 F. 250; Ib. 246. Confirmation cures defects in proceedings. 47 Ark. 417; 52 Id. 342. Misdescriptions or clerical errors may be corrected. 33 Ark. 296; 28 Id. 372; Ib. 120; 49 Id. 406.

4. Plaintiffs are barred by lapse of time and acquiescence. 55 Ark. 85; 7 S. & M. (Miss.), 409; 7 Pick. 6; 101 U.S. 139; 28 F. 276; 40 F. 774; 36 Ark. 401; 30 N.W. 9; 2 Wall. 95. A disavowal of a trust puts the statute in motion. His possession becomes adverse from the time he repudiates or disavows it. 7 Johns. Ch. 90; 3 Peters. 52; 4 Mason. 151-2; 10 Peters, 223. Where a trustee denies the right of the cestui que trust, his holding becomes adverse. 115 U.S. 151; 120 Id. 386; 20 Mo. 538; Strobh. Eq. S. C. 340. The administration as to this land virtually closed in 1874. As to it he had no further duties to perform. Notorious acts of hostility to the title of the cestui que trust are a renunciation of the trust. 22 Ark. 1; 16 Ark. 122. In 46 Ark. 25, the court say that the doctrine that the statute will not bar an express trust is subject to two qualifications. See p. 34. See also 48 Ark. 248; Wood on Lim. sec. 205; 2 Perry on Trusts, sec. 863; 53 Pa.St. 352; 5 Ind. 259. Even if the purchase by Fleeman was void, the deed of Parkes & Quaile gave color of title which supports adverse possession and puts the statute in motion. 13 How. 477; 21 Ark. 370; 34 Id. 547.

JOHN FLETCHER, Special Judge. Mansfield, J., being disqualified, did not sit in this cause.

OPINION

JOHN FLETCHER, Special Judge.

R. H. Adams died in 1863. On November 19, 1865, M. F. Fleeman married his widow, and, on November 27, 1865, he took out letters of administration upon the estate of Adams. Fleeman made regular annual settlements in the probate court up to 1875, but his final settlement was not made until August 4, 1880, at which time he was discharged.

On 26th day of December, 1883, a part of the heirs interested in the estate, and who were non-residents, brought suit in the United States court at Fort Smith, Arkansas, against Fleeman and the other heirs, who were residents of this State, for the purpose of falsifying the settlements of Fleeman and to recover lands of the estate which, it was alleged, Fleeman had fraudulently sold and caused to be purchased for his benefit. That suit was on April 24, 1887, dismissed for the want of jurisdiction, and, on the 24th day of May, 1887, this suit was brought by all the heirs, in the Franklin circuit court in chancery, for the same purpose. From the decree of the court below all the parties have appealed.

As to certain claims probated against the estate and which, it is alleged, were fraudulently allowed by the administrator, the circuit court decided there was no fraud; and, as to the accounts of Fleeman, the court found, to use the language of the decree, that there were "no such errors arising from fraud, accident or mistake as to justify opening the same, that such irregularities as appear therein may have been susceptible of explanation at the time, whilst not so after so long a lapse of time, for which reason the court declines to disturb the settlements." We have carefully examined the record, and as to this we think the conclusions of the circuit judge are correct.

The lands are designated in the record as lots 1 to 7 to inclusive. The leading questions in the case arise as to lots 2 and 3. These two tracts were sold by Fleeman, as administrator, at public sale on January 6, 1868, for the purpose of paying debts probated against the estate. Prior to the sale, Perry F. Webb, a neighbor of Fleeman, in conversation with Fleeman's wife, expressed a desire to purchase lot 2, but said he did not feel able to pay for it on so short credit as was to be given. Mrs. Fleeman informed him that she would like to have a half interest in this tract, and would take half at whatever price he might pay. She also requested Webb to bid off lot 3 for her at the sale. This tract (lot 3) had been previously set apart to her as her dower in the lands of R. H. Adams, and only the remainder interest was advertised for sale. Webb bid off lot 2 at the sale for $ 6,000.00 in his own name; but lot 3 brought so much more than was anticipated by Webb that he ceased bidding, and it was purchased by Parkes & Quaile for $ 3,845.00. Whether Fleeman knew of the arrangement between Webb and Mrs. Fleeman, we need not inquire. We find that, before the sale was confirmed, he entered into an agreement with Webb to take the half of lot 2 adjoining lot 3 at the same price which Webb bid for it, and, when Webb's note for $ 6,000.00 became due, he allowed him credit for one-half thereof, and charged himself as administrator with it. This tract sold for within $ 255.00 of its appraised value, and within about $ 1,800.00 of the price which Adams gave for it just before the war. We are unable to say from the evidence that there was any positive or actual fraud in the sale of this tract, but the fact that Fleeman acquired an interest in the land before the sale was confirmed was equivalent to a purchase at his own sale, and the law condemns it as fraudulent. Woodard v. Jaggers, 48 Ark. 248, 2 S.W. 851; Gibson v. Herriott, 55 Ark. 85, 17 S.W. 589; McGaughey v. Brown, 46 Ark. 25.

Fleeman pleads the statutes of five and seven years limitations. But it is argued by counsel for plaintiffs that the statute was not set in motion in his favor until after his final settlement and discharge, August 4, 1880, and that five years did not thereafter elapse before the bringing of the first suit.

The rule, we believe, is universally established that the statute will not bar an express trust. "But this doctrine" says Chief Justice Cockrill, in McGaughey v. Brown, 46 Ark. 25, "is subject to two qualifications, namely, that no circumstances exist to raise a presumption of the extinguishment of the trust, and that no open denial or repudiation of the trust is brought home to the knowledge of the parties in interest which requires them to act as upon an asserted adverse title." Citing Angell on Lim. 174, 472; Wood on Lim. 212, 213; Harriet v. Swan, 18 Ark. 495.

The sale to Webb was...