Bond v. Montgomery
| Decision Date | 12 November 1892 |
| Citation | 20 S.W. 525 |
| Parties | BOND <I>et al.</I> v. MONTGOMERY. |
| Court | Arkansas Supreme Court |
Appeal from circuit court, Monroe county; GRANT GREEN, Jr., Judge.
Action by Nancy J. Bond and others against Polk Montgomery to set aside a sale of homestead lands. Defendant filed a cross complaint admitting that he took no title by the sale, but asked to be subrogated to the rights of the creditors for whose benefit the land was sold. A demurrer by plaintiffs to the cross complaint was overruled, and they appealed. Reversed.
The other facts fully appear in the following statement by BATTLE, J.:
On the 7th of January, 1890, appellants filed in the Monroe circuit court a petition, alleging therein that Robert E. Bond died on the 14th of December, 1872, intestate, leaving appellant Nancy J. Bond, his widow, and the other appellants, some of whom were his children, his heirs, surviving; that he owned and occupied, at the time of his death, the N. W. ¼ of section 27, in township 1 S., and range 2 W., in Monroe county, in this state, as a homestead; that J. T. Oates and his widow, Nancy J. Bond, were respectively appointed administrator and administratrix of his estate, and qualified as such, and took upon themselves the burden of its administration; that thereafter Nancy J. filed an application in the office of the clerk of Monroe county, in which she described the tract of land mentioned above, and claimed the same as a homestead, and asked that it be reserved from sale; that the clerk entered upon the record of the court an order that it was so reserved on her application; and that afterwards J. T. Oates, as administrator, procured from the Monroe probate court an order directing him to sell the land so reserved, subject to the homestead, for the purpose of paying the claims probated against the estate, and, on the 9th of June, 1883, sold it, at public auction, subject to the homestead, to Polk Montgomery, for $505, it being two thirds of the appraised value thereof, and, the purchase money having been paid, conveyed it to him, in the same manner, on the 5th of May, 1884; and that, when it was set apart as a homestead, all the children were minors, and three of them did not arrive of age until after the sale, and Nancy J. is still the widow of the deceased. The prayer of the petition was that the application and all other papers on file, and the orders of the probate court, in respect to the sale of the land, be certified to the circuit court, and that the orders and sale be set aside and declared void.
Montgomery, the purchaser, appeared and answered, admitting the allegations of the petition to be true, and averring that, at the time the land was ordered to be sold, the claims which were probated against the estate of Bond, and remained unpaid, amounted to the sum of $957.01, and that the lands were sold to pay these claims; and asked that the cause be transferred to the equity docket, and that he be subrogated to the rights of the creditors of the deceased.
Appellants filed a demurrer to the answer, and the court overruled it, and transferred the cause to the equity docket, and, appellants electing to stand upon their demurrer, ordered, adjudged, and decreed that Montgomery be subrogated to the rights of the creditors.
Price & Parker, for appellants. Sanders & Watkins, for appellee.
BATTLE, J., (after stating the facts.)
Under the constitutions of 1868 and 1874, the probate court had and has 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, or 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 this case was therefore an absolute nullity. McCloy v. Arnett, 47 Ark. 445, 2 S. W. Rep. 71; Nichols v. Shearon, 49 Ark. 75, 4 S. W. Rep. 167; Stayton v. Halpern, 50 Ark. 329, 7 S. W. Rep. 304.
The circuit court and the parties treated the answer of appellee as a cross complaint. Appellee offered no resistance to the prayer of appellants' petition, but conceded all they asked. All he asked was to be subrogated to the rights of the creditors of the estate of Robert E. Bond, deceased. Is he entitled to be subrogated to such right? is the principal question presented for our decision.
Upon the right of purchasers at void execution or judicial sales to subrogation to the rights of creditors to the payment of whose claims the purchase money paid by them has been appropriated, courts are not agreed. Many consider them as volunteers, acting without compulsion, and for no purpose of protecting any interest of their own, and under a mistake of law, and therefore not entitled to the protection of courts of equity. On the other hand, others hold that the doctrine of subrogation rests upon the natural principles of equity and justice; that purchasers at such sales, who are entitled to the benefit of subrogation, are not volunteers; that they purchase at a sale made under the coercive process of law, under the honest belief that they are getting the property sold, and their money is actually applied to the benefit of the owner in paying his debts or removing charges or liens upon his property; and that it would be in the highest degree inequitable, and against good conscience, to permit the owners, the administrators, or creditors, as the case may be, to hold or enjoy, at the same time, the benefit of the property sold and the money of the purchaser without recompense; and that, in order to prevent this injustice and wrong, they should be subrogated to the rights of the creditors, or to the benefit of the liens or charges, to the payment of whom or which their money has been applied. According to the latter view, it is the belief of the purchaser that he is getting the property sold, and the actual application of the money to the benefit of the owner in paying his debts in removing a charge or lien on his estate, which constitute the equity. There is no conflict between this view and the maxim of caveat emptor. That maxim applies where there is a failure of title, "because of a want of ownership in the property by the defendant in the execution or in the intestate" or testator, "but it does not apply to the defects in the title of the purchaser occasioned by a failure of the sale to pass the title of the defendant's intestate" or testator. The latter view has been adopted by this court, and is sustained by the decided preponderance of authority. Waggoner v. Lyles, 29 Ark. 47; Nichols v. Shearon, 49 Ark. 75, 4 S. W. Rep. 167; Meher v. Cole, 50 Ark. 361, 7 S. W. Rep. 451; McGee v. Wallis, 57 Miss. 638; McLaughlin v. Daniel, 8 Dana, 183; Bright v. Boyd, 1 Story, 478, and 2 Story, 605; Scott v. Dunn, 1 Dev. & B. Eq. 425; Valle's Heirs v. Fleming's Heirs, 29 Mo. 164; Blodgett v. Hitt, 29 Wis. 182; Hatcher v. Briggs, 6 Or. 31; Short v. Porter, 44 Miss. 533, 538; Crippen v. Chappel, 35 Kan. 495, 11 Pac. Rep. 453; Levy v. Martin, 48 Wis. 198, 4 N. W. Rep. 35; Freem. Jud. Sales, §§ 51-54, and cases cited.
But it is said that the administrator committed a misdemeanor by undertaking to sell the homestead, and that the appellee was a particeps criminis, and is not entitled to be subrogated to the rights of creditors. To sustain this contention, an act of the general assembly numbered 105, and approved April 25, 1873, is relied on. Section 1 of that act provides that whenever any resident of this state shall die leaving a widow or children, who may desire to claim the benefit of the homestead of the deceased, she or they, as the case may be, shall file with the clerk of the probate court of the county in which the homestead is situated an accurate description of the land so claimed, and apply to have the same reserved from sale; and section 2 provides that it shall be the duty of such clerk, immediately after the filing of the application, to enter upon the records of said court that said homestead has been duly reserved from sale upon the application of such claimant or claimants. Section 9 then provides that, when these sections have been complied with by the parties claimant, "any administrator or executor of the estate of the deceased, who shall assume the possession of, or in any manner disturb the widow or children of the deceased in the enjoyment of, said homestead, or undertake to sell the same, shall be guilty of a high misdemeanor, and shall, upon conviction, be imprisoned in the county jail for a term not less than one nor more than two months, and shall be fined in any sum not less than one hundred nor more than five hundred dollars." The first two sections are in Mansfield's Digest, but the ninth...
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