Brown v. Nelms

• Decision Date: 23 March 1908
• Citation: 112 S.W. 373,86 Ark. 368
• Parties: BROWN v. NELMS
• Court: Arkansas Supreme Court

112 S.W. 373

86 Ark. 368

BROWN v. NELMS

Supreme Court of Arkansas

March 23, 1908

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Appeal from Crittenden Chancery Court; Edward D. Robertson Chancellor; reversed in part.

STATEMENT BY THE COURT.

This is an appeal from a decree of the chancery court of Crittenden County which involves, so far as concerns the disposal of the case here, separate controversies between the plaintiffs below and the various defendants, though there are some questions in common to be disposed of.

Josiah F. Earle resided in Crittendon County, and owned a large body of lands situated there. He died in the year 1884, leaving surviving his widow, Louisa R., and four children, Louisa, Jerry, Ben R. and Ruth. The two children first named died intestate and without issue during the lifetime of their mother, leaving the other two, Ben R. and Ruth, as their heirs at law.

Josiah F. Earle left a last will and testament, which was duly probated and contained the following disposition of his property without otherwise mentioning the devisees: "I give my wife one-half of all my property and one-half to my children. I authorize and direct my wife to sell all the real property and reinvest in some better county for herself and children. I direct that she control and manage and sell the same, and reinvest when she can get a fair price to satisfy her--the same as if she were sole owner. I owe but little, and wish that little paid out of my life policy."

Louisa R. Earle died intestate in the year 1891, leaving surviving her two children, Ben R. and Ruth, as her heirs at law; and during that year the said Ben R. Earle was appointed administrator of her estate and also guardian of the person and estate of his sister, Ruth. He executed separate bonds as administrator and as guardian, with John R. Chase and A. H. Ferguson as his sureties; and executed to Chase a mortgage on all his interest in lands in Crittenden County to indemnify the sureties against loss by reason of their liability as sureties on his said bonds. The mortgage was not filed for record until November 13, 1895. On January 16, 1894, the probate court revoked the letters of administration held by Ben R. Earle, and on October 15, 1894, issued letters of administration in succession to W. W. Swepston on the estate of said Louisa R. Earle, deceased. The probate court made an order directing Swepston, as administrator of the Louisa R. Earle estate, to sell, for the payment of the debts of the estate, certain lands owned by said Louisa R. Earle by inheritance from her father and her undivided half interest in certain lands devised to her by the will of Josiah F. Earle. The sale was made by the administrator on the date named in the order of court, after the lands had been appraised.

W. N. Brown, Jr., became the purchaser of one of the tracts at the sale; L. Pickett, who subsequently conveyed to Brown, became purchaser of certain other tracts; J. F. Rhodes became the purchaser of certain other tracts, and J. M. Williams as trustee for Stone & Tyler became the purchaser of other tracts. These sales were duly reported to the probate court by the administrator, and the sales were by the court confirmed, and deeds were executed to the respective purchasers pursuant to orders of the court. The undivided interest of Ben R. Earle in some of the J. F. Earle lands were sold under levee tax decrees, and purchased by W. N. Brown, Jr. On February 8, 1894, Ben R. Earle executed to T. W. Paxton a deed conveying his interest in certain other tracts of the J. F. Earle lands to secure the payment of a debt of $ 684.26 to the Edgewood Distilling Company. This deed was executed subject to the lien of a judgment for about $ 300 in favor of one W. P. Conner against Ben R. Earle, rendered on October 21, 1892. S. A. Martin and E. E. Williford became sureties on a bond to stay this judgment, and on expiration of the stay execution was issued and levied on said interest of Ben R. Earle in the tracts of the J. F. Earle lands conveyed, as aforesaid, to Paxton as trustee. The lands were sold under the execution, and Martin and Williford became the purchasers for the amount of the judgment and costs. The sale was made on December 1, 1894, and on May 2, 1895, Ben R. Earle conveyed, by quitclaim deed, his interest in the lands to Martin and Williford. This deed is alleged to have been intended by the parties as a mortgage. Martin afterwards quitclaimed to Williford, and the latter conveyed the lands on January 3, 1897, to George P. Diehl for a cash consideration of $ 389.50. On July 22, 1897, the sheriff of the county executed to Diehl, as assignee of Martin and Williford, a deed to the lands pursuant to the execution sale. Diehl was acting for the Edgewood Distilling Company, and the title he took under the deeds to him is conceded to be for the use and benefit of that company.

On September 23, 1890, Louisa R. Earle conveyed a quarter section of the Josiah F. Earle lands to W. R. Barksdale. The deed recites that it was executed by said Louisa R. Earle in her own right and as executrix of the estate of Josiah F. Earle, and that the purchase price of the land was to be used in the purchase of a home for herself and children in Memphis, Tennessee.

In 1895 the Edgewood Distilling Company and T. W. Paxton, trustee, instituted suit in the chancery court of Crittenden County against Ben R. Earle to foreclose said trust deed executed by him to Paxton as trustee to secure the payment of indebtedness to Edgewood Distilling Company. S. A. Martin and E. E. Williford were made parties defendant, and the complaint prayed that said execution sale of the Ben R. Earle lands be cancelled on account of alleged fraud and irregularities in the sale.

On October 4, 1895, W. W. Swepston as administrator in succession of the estate of Louisa R. Earle, deceased, instituted suit in said chancery court against Ben R. Earle and the sureties on his bond as administrator of the estate of Louisa R. Earle to surcharge and falsify the accounts of Ben R. Earle as such administrator, and to recover the amount alleged to be due by him to the estate.

On August 21, 1899, C. L. Lewis, as guardian of Ruth Earle, instituted suit in said chancery court against George P. Diehl, J. M. Williams, trustee, and Stone & Tyler, for partition of the lands held by them as tenants in common. The complaint set forth the last will and testament of said Josiah F. Earle and the devise of one-half of said lands to Louisa R. Earle and the remainder of the child of the testator. It also alleged that Diehl was the owner of the Ben R. Earle fourth interest in certain tracts of said lands through the deed from Ben R. Earle to Martin & Williford. The complaint also set forth a claim of homestead rights in said lands, and prayed that the same be set apart, and that an accounting of rents and profits be had.

On November 29, 1902, Ruth Earle Nelms (nee Earle) instituted suit in said chancery court against the respective parties in interest, praying in her complaint the following relief:

1. That the interests of plaintiff in the several tracts of the Josiah F. Earle lands be ascertained and fixed, and her title quieted and confirmed, and all adverse claims of title cancelled, and that she have an accounting of the rents and profits, and decrees against the defendants liable, for the sums they owe on account of the rents; and also for waste committed.

2. That the amount due her from the estate of Louisa R. Earle on account of her administration of the estate of Josiah F. Earle, and of her guardianship of plaintiff as a tenant in common of the lands, be ascertained and fixed, and that plaintiff have a decree therefor against the administrator of the estate of Louisa R. Earle, and the sureties on her bond as administratrix, and the sureties on her bond as guardian, for their liabilities, and that the sums for which she might obtain decrees be declared liens superior to all other liens on all the lands of which Louisa R. Earle was the owner at the time of her death, and that such lands be sold for the payment thereof.

3. That the amounts owing plaintiff by Ben R. Earle on account of his administration of the estate of Louisa R. Earle, and on account of his administration of the estate of Josiah F. Earle, and as her guardian, and as tenant in common with her of the land, be ascertained and fixed, and that she have decrees therefor against Ben R. Earle, and the sureties on his bond as administrator, and as guardian, according to their respective liabilities, and that the amounts decreed her to be declared liens superior to all other claims and liens on the lands of Ben R. Earle.

4. That plaintiff be decreed the benefit of the mortgages made by Louisa R. Earle to John R. Chase, as trustee, and by Ben R. Earle to John R. Chase, as trustee, and that the mortgages be foreclosed for the payment of what is decreed due her.

5. That an account be taken with Swepston, and the amount he owes plaintiff be ascertained and fixed, on account of his administration of the estate of Louisa R. Earle, and his sales of the land belonging to that estate, and for rents collected belonging to plaintiff, and on the other accounts stated in the complaint, and that she have a decree against him and the sureties on his bond as administrator, and also decrees for the sums owing Ben R. Earle on the same accounts assigned her by him.

6. That an account be taken between plaintiff and Lewis as her guardian, of his guardianship, and that the amount he is owing her be fixed, and she have a decree for the same against him and the sureties on his bond.

7. That all the sales of all the lands belonging to the estate of Louisa R. Earle, made by Sweptson as...