Cotham v. Lucy

• Decision Date: 12 October 1914
• Docket Number: 154
• Citation: 171 S.W. 113,115 Ark. 84
• Parties: COTHAM, ADMINISTRATOR, v. LUCY, EXECUTOR
• Court: Arkansas Supreme Court

171 S.W. 113

115 Ark. 84

COTHAM, ADMINISTRATOR, v. LUCY, EXECUTOR

No. 154

Supreme Court of Arkansas

October 12, 1914

Appeal from Garland Chancery Court; Jethro P. Henderson, Chancellor affirmed.

Decree affirmed.

James E. Hogue, for appellant.

1. The effect of the sale was merely to dispose of the estate's equity of redemption. The agreement between the primary administrator and the purchaser of the land, for the purchaser to offset his debt against his bid was void, and the purchaser should be required to pay his bid. Kirby's Digest, § 202; 53 Ark. 358; 2 Woerner, Am. Law of Administration, 936, § 859; 71 Mo. 459; 50 Mo. 296; Croswell's Executors & Administrators, 294; 66 N.C. 532; 43 Md. 554; 13 Bush. 447; 48 W.Va. 447; 70 Mo. 209; 12 Ark 378; 29 Ark. 500; 49 Ark. 285; 27 Ark. 667; 31 Ark. 108; 1 Aikens 231; 102 Ill. 446; 57 N.J.Eq. 291.

2. It will be presumed that the administrator complied with the law in making the sale, and sold on a credit of not less than three months, taking the purchaser's bond and security for the purchase money. Kirby's Digest, § 181. Equity regards that as done which ought to have been done. Bispham's Principles of Equity, § 44. There is therefore, no merit in the plea of limitation.

Martin & Wootten, for appellee.

OPINION

MCCULLOCH, C. J.

Appellant 's intestate, John D. Ware, owned a tract or lot of real estate in the city of Hot Springs, on which a building was situated, and mortgaged the same to Edward Fitzgerald to secure a debt of $ 2,800 which he owed to the latter.

The mortgage debt was not paid, and on February 16, 1902, the administrator presented his petition to the probate court of Garland County, praying for an order authorizing him to sell said property. The administrator recited in his petition the damaged and dilapidated condition of the house on the property, and also recited the fact of the existence of the mortgage to Fitzgerald, and stated the amount, which then with interest aggregated the sum of $ 3,008.60. The petition did not pray for a sale merely of the equity of redemption, but of the whole property. The order of sale is not in the record, but it appears to be conceded that the order of the court gave general directions to the administrator to sell the entire property, and not merely the equity of redemption.

The contention in this case is, however, that the effect of the sale was merely to dispose of the equity of redemption. The sale was regularly advertised by the administrator, and Fitzgerald bid the amount of his mortgage debt, and the property was stricken off to him as the purchaser. At the next term of the probate court, in May, 1902, the administrator reported his proceedings, with respect to the sale, to the probate court, referring to the fact that Fitzgerald had bid the amount of his mortgage debt, and asked leave of the court to permit him to balance off the mortgage debt against the price bid for the land. No order of confirmation appears on the record, but the administrator executed a deed to Fitzgerald, reciting the sale to the latter and the payment of the purchase price, receipt of which was duly acknowledged. It appears that the records of Garland County have been destroyed or mutilated by fire, and it is not clear that there was any order of confirmation entered upon the record until after commencement of this suit.

Appellant first instituted this suit in December, 1905, attacking the validity of the sale, but by a subsequent amendment, the attack on the validity of the sale was abandoned and the suit was converted into one against Fitzgerald to recover the amount of the latter's bid and to have a lien declared upon the property upon the theory that the sale amounted only to a sale of the equity of redemption, and that the purchaser took the property subject to the mortgage debt, and that the administrator had no right to allow the bid of the purchaser to be credited in extinguishment of the mortgage debt. The defendant, Edward Fitzgerald, died during the pendency of the suit, and the cause was revived in the name of his executor and sole devisee under his will. The decree of the court was in favor of the defendants, and the plaintiff appealed.

Among other defenses set forth in the answer, the defendants pleaded the three-years statute of limitation; and as the disposition of that plea is decisive of the case, other defenses need not be referred to. The sole purpose of this suit is to collect the amount of the purchaser's bid; the attack upon the validity of the sale being, as before stated abandoned. It is neither alleged nor proved that Fitzgerald, the purchaser, ever executed a note or written obligation of any kind to pay the amount of the bid. On the contrary, it affirmatively appears from the report of the administrator to the probate court that the purchaser claimed the right to credit the amount of his bid upon his mortgage debt and thereby extinguish it. Therefore, the suit is not upon a written...