Cowling v. Nelson

• Decision Date: 24 June 1905
• Parties: COWLING v. NELSON
• Court: Arkansas Supreme Court

88 S.W. 913

76 Ark. 146

COWLING v. NELSON

Supreme Court of Arkansas

June 24, 1905

Cross appeals from Hempstead Chancery Court, JAMES D. SHAVER Chancellor.

Reversed in part.

Decree affirmed and cause remanded.

Feazel & Bishop, for appellants.

D. B Sain and W. C. Rodgers, for appellee.

OPINION

HILL, C. J.

In 1895 Bettie Jones owned an undivided half interest, and her nephew and niece, Willie and Ola Jones, owned the other half, of a tract of land containing about 330 acres, lying partly in Hempstead County and partly in Howard County. They inherited the land. Bettie Jones was then and is now an insane person and confined in the State Asylum. Ola Jones was born August 3, 1875, and Willie Jones was born July 15, 1882. On the 19th day August, 1895, the then guardian of Bettie Jones filed a partition suit in the Hempstead Circuit Court against Ola Jones and Willie Jones, alleging the latter to be a minor and set forth the respective interests of the parties, and prayed a partition of the land, and, in the event it was not found susceptible of partition, a sale thereof, and a division of the proceeds. Constructive service was had against the defendants therein, and decree rendered, finding the respective interests of the parties, and ordering partition, and appointing commissioners to make partition. The commissioners made partition, and reported their proceedings, partitioning all the land except a 48-acre tract which was afterwards sold to appellee J. L. Reed. The report was confirmed. Before discussing the principal contention, which is over the 48-acre tract, the other questions presented attacking the whole proceeding will be disposed of.

It is contended that under § 6064, Kirby's Digest, providing that an action for the distribution of the estate of a deceased person, or its partition among his heirs, etc., must be brought in the county where his personal representative qualified, as there was an administration of the estate of the ancestor in Howard County, the suit should have been brought there, and the Hempstead Court was without jurisdiction. The section just preceding this (6063) provides that an action to settle the estate of a deceased person must be brought in the county in which the personal representative qualified. These sections were taken from the Civil Code, which was adopted when the Constitution of 1868 was in force, and under it the probate jurisdiction was exercised in the circuit courts, and there were no separate probate courts. These sections, therefore, were intended to bring into the forum where the administration was pending actions settling, distributing, and partitioning estates. Under the changed jurisdiction, the excellent reasons for the enactment of these statutes ceases, and, if given force, must not be extended. The evidence shows that the administration on the estate of the ancestor was wound up and the administrator discharged before the partition suit was brought, and the reason, even under the former law, for applying this statute would not be applicable, and a fortiori it is not applicable under the present system. Section 6060, Kirby's Digest, provides that actions to partition lands shall be brought where the land, or some part of it, is situated. The Hempstead Circuit Court had jurisdiction of the partition suit.

The next objection is to the insufficiency of the description of the land partitioned. The tracts (other than the 48-acre tract) are described obscurely, to say the least of it; but the parties have sold their interests in them, and the purchaser is in possession, and is not made a party to this suit. Whatever difficulties there may have been in locating the tracts from the description is removed by putting the purchaser into possession. The question is not open here.

That leaves only for consideration the 48-acre tract. The commissioners, in their report partitioning the land, after reporting that the parties had no other property, suggested that a certain tract described therein, and containing 48 acres, be set aside and sold to defray the expenses of the proceedings, which they understood would be about $ 150. They reported that they had an offer of $ 150 for this tract, which they considered a fair price. The court confirmed their proceedings in setting aside the various tracts, and approved their suggestion, and ordered this tract sold to Reed for $ 150, to pay costs and expenses, including an attorney's fee of $ 75 for the attorneys for the plaintiff in the suit. The commissioners then sold the tract to Reed for said sum, and executed him a deed therefor in December, 1895, and he went into possession and placed improvements on the land, and has held it since. At the April term, 1896, of the Hempstead Circuit Court, their deed was presented to the court, and an order was made in the case reciting that the commissioners produced to the court their deed to J. L. Reed for the land, and described it, and concluded, "which it in all things approved and confirmed by the court." While this related to the deed, yet it identified the prior transaction wherein the sale to Reed at this price was ordered, and must be treated as a confirmation of the sale. It is irregular and improper, because formal confirmation should always be entered of record, yet the court has said that it was not necessary that confirmation appear by a formal order to that effect, if it can be gathered from the whole record Ousler v. Robinson, 72 Ark. 339, 80 S.W. 227. Taking the whole record, the sale must be treated as confirmed. This precludes Ola Murphy from maintaining this action to set aside the sale on the ground of the want of jurisdiction to render the judgment ordering this land sold to pay costs and attorney's fees. The court had jurisdiction of the parties and the other parts of the decree were valid, and the exceptions to the application of the five-year statute of limitations on the part of purchasers at juricial sales do not apply. She was of full age when the decree was rendered, and this action was brought more than five years thereafter.

While proceedings based on void judgments cannot be validated, yet it is competent to curtail actions to get them aside by shorter statutes of limitations than the general statutes. Freeman on Void Judicial Sales, § § 58, 58a.

This court has held that the five-year statute does not apply to judicial sales unless they are confirmed, because there is no sale until that act. Lumpkins v. Johnson 61 Ark. 80, 32 S.W. 65; Morrow v. James, 69 Ark. 539, 64 S.W. 269. When confirmed, and the court has jurisdiction over the parties, the five-year statute runs in favor of the purchaser at such sale against the parties thereto, although the sale is void. It...