Bond v. Montgomery

Decision Date12 November 1892
Citation20 S.W. 525,56 Ark. 563
CourtArkansas Supreme Court

APPEAL from Monroe Circuit Court in chancery, GRANT GREEN, JR. Judge.


On the 7th of January, 1890, appellants flied 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 northwest quarter of section 27 in township one south, and range two west, 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 burthen 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 order 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.

Decree reversed and cause remanded.

Price & Parker for appellants.

1. The creditors were not parties, nor was the administrator; hence appellee must comply with Mansf. Digest, sec. 5023. 43 Ark 469; 32 id. 289; 31 id. 360-4; ib. 203.

2. The sale was void. 47 Ark. 445; 50 id. 329.

3. The appraisement was void. 55 Ark. 268.

4. Appellee was not entitled to subrogation. He did not pay the whole debt. 5 Wait's Ac. and Def. 213; 7 A. 788; 5 A. 877.

5. The sale being void, no rights grew out of it. Rorer, Jud. Sales, sec. 4; 39 Ark. 571. Appellee was a mere wrongdoer--a volunteer. 1 N.E. 485; 124 U.S. 534; 120 id. 287; 3 N.E. 753; 11 A. 122; 14 N.W. 331: 93 Am. Dec. 783 and note.

6. Appellee violated the criminal law in selling the homestead. Acts 1873, page 247, sec. 9; Gantt's Digest, sec. 3162. All sales made in violation of criminal law are against public policy and void. Greenhood on Pub. Pol. 580 to 586; Bish. on Cont. secs. 467 to 549.

7. Money paid voluntarily with full knowledge of all the facts, or under a Mistake of law, does not entitle one to subrogation. See Harris on Sub. 130; 7 N.E. 52; 44 Ark. 271; 50 id. 314; 10 Peters, 137; 23 Am. Dec. 773; 53 Ark. 130; Wait's Ac. and Def. vol. 1. p. 84, sec. 2, and vol. 4, P. 486, sec. 12; 13 Wall. 517.

Sanders & Watkins for appellee.

1. By paying the $ 500 to the administrator under the sale authorized by the probate court, which was paid to the creditors of the estate, the appellee was subrogated to the rights of the creditors. Sheldon on Subrogation, sec. 35; 10 Gill and Johnson (Md.), 65; Woerner, Am. Law of Adm. vol. 2, page 1071; 108 Ind. 579; 64 Miss. 555; 29 Ark. 47. See also 53 Ark. 545; 52 id. 499.

2. The creditors were not necessary parties. 41 F. 614.


BATTLE, J., after stating the facts as above reported.

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 & Trotter v. Arnett, 47 Ark. 445, 2 S.W. 71; Nichols v. Shearon, 49 Ark. 75, 4 S.W. 167; Stayton v. Halpern, 50 Ark. 329, 7 S.W. 304.

The circuit court and the parties treated the answer of appellee as a cross-complaint. Appellee offered no resistance to the prayer of appellant's 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, dec'd. Is he entitled to be subrogated to such rights? 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. Waggener v. Lyles, 29 Ark. 47; Nichols v. Shearon, 49 Ark. 75, 4 S.W. 167; Meher v. Cole, 50 Ark. 361, 7 S.W. 451; McGee v. Wallis, 57 Miss. 638; McLaughlin v. Daniel, 38 Ky. 182, 8 Dana 182; Bright v. Boyd, 1 Story 478; S. C. 2 Story 605; Scott v. Dunn, 1 Dev. & Bat. Eq. 425; Valle's Heirs v. Fleming's Heirs, 29 Mo. 152; Blodgett v. Hitt, 29 Wis. 169; Hatcher v. Briggs, 6 Ore. 31; Short v. Porter, 44 Miss. 533, 538; Crippen v. Chappel, 35 Kan. 495, 11 P. 453; S. C. 57 Am. Rep. 187; Levy v. Martin, 48 Wis. 198, 4 N.W. 35; Freeman on Void Judicial Sales, secs. 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 the 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...

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