Crawford County Bank v. Bolton

• Decision Date: 13 July 1908
• Citation: 112 S.W. 398,87 Ark. 142
• Parties: CRAWFORD COUNTY BANK v. BOLTON
• Court: Arkansas Supreme Court

112 S.W. 398

87 Ark. 142

CRAWFORD COUNTY BANK v. BOLTON

Supreme Court of Arkansas

July 13, 1908

Appeal from Crawford Circuit Court; Jeptha H. Evans, Judge reversed.

STATEMENT BY THE COURT.

This is an action of ejectment brought by the Crowford County Bank against U.S. Bolton and Belzora Bolton in the Crawford Circuit Court for the recovery of forty acres of land situate in Crawford County. The defendants answered, setting up among other defenses that the lands were held by the bank as trustee for them. The plaintiffs filed a demurrer to the answer of the defendants, but no action was ever taken on it by the court.

The following is the statement of facts as agreed upon by the parties to this action, and upon which the said cause was submitted to the court for its decision:

W. H H. Lovett died on or about the 12th day of August, 1891, in the county of Franklin, intestate, leaving a wife, who died shortly thereafter, on the day of 1896, and the following children: Belzora Bolton, wife of U.S. Bolton and one of the defendants, J. C. Lovett, Angeline Branner, nee Lovett, Relda Nelson, nee Lovett, B. R. Lovett, the last three of whom were minors at the time of the death of the deceased; that said Lovett died seized and possessed of the N 1/2 of the N. W 1/4, sec. 2, T. 10 N., R. 29 W.; that on the 28th day of January, 1886, the deceased entered into a contract with the Little Rock & Fort Smith Railway for the purchase of the N.W 1/4, N. E. 1/4 sec. 2, T. 10, N. R. 29 W., which adjoins said last tract on the east, and went into possession of the same under his contract, and was in possession, at the time of his death, as part of his homestead; that the legal title to the said N.W. 1/4 N.E. 1/4 sec. 2, T. 10 N., R. 29 W., was in the Little Rock & Fort Smith Railway at the time of the death of said W. H. H. Lovett, subject to the terms of the said contract of purchase and subject to foreclosure for nonpayment of any of the yearly payments or interest due on said land; that all of the said lands were in Franklin County at the death of the said deceased; that afterwards, by an act of the General Assembly of the State of Arkansas at its session of 1895, said N. W.1/4 of N. E.1/4 sec. 2, T. 10 N R. 29 W., was detached from Franklin and made a part of Crawford County, where it remains; that at the time of the death of the said W. H. H. Lovett he was living upon and occupying the said 120 acres of land as his homestead; that on the said contract for the purchase of the said N. W.1/4 N. E.1/4 sec. 2, T. 10 N., R. 29 W. (the land in controversy in this action) the deceased prior to his death had paid the sum of $ 43.48; that after the death of the deceased the widow and heirs of said Lovett paid the remainder of said contract price, to-wit: $ 53.90, the last payment having been made on the 1st day of November, 1892. The said Little Rock & Fort Smith Railway Company on the 1st day of November, 1892, executed its deed for the same to W. H. H. Lovett over the protest and objection of the heirs of said deceased, who demanded that the deed be made and executed to them; that after the death of the widow of the deceased the defendants with their minor children moved on said land, which had been occupied by the widow and children since the death of the said Lovett, and continued to live jointly thereon with the said minor children until the youngest become of age, since which time the defendants have occupied the same exclusively; that the defendant, Belzora Bolton, took deed from the heirs of W. H. H. Lovett, deceased, as per her exhibit to her answer for the lands mentioned therein; that the said W. H. H. Lovett died intestate, leaving no personal estate in excess of that by law allowed to be retained by the widow as her absolute property, and that said 120 acres of land occupied by him as a homestead do not exceed in value the sum of $ 2,500; that S. A. Pernot was on the 24th day of January, 1900, duly appointed by the probate court of Franklin County as administrator of the said estate of W. H. H. Lovett, deceased; that he applied to the said probate court for an order to sell the said N. W.1/4 N. E.1/4 sec. 2, T. 10, N., R. 29 W. (the land in controversy) for the purpose of paying the debts probated against said estate. Order of sale was made on the day of November, 1905, a day of the November term, 1905, the land sold on the 20th day of December, 1905, to the Crawford County Bank for the sum of $ 200, the sale confirmed by the probate court of Franklin County February 12, 1906, and deed made by the administrator March 20, 1906. S. A. Pernot at the time of his appointment as such administrator and sale made by him was a stockholder and cashier of the Crawford County Bank, a corporation organized and operating under the laws of the State of Arkansas; that B. R. Lovett, the youngest of the children of said W. H. H. Lovett, deceased, reached the age of 21 years on the day of , 1899 or 1900.

The cause was tried before the court without a jury. The court found that the deed of the administrator to the plaintiff was void and of no effect, and that the plaintiff for that reason was not entitled to recover the land. The court therefore adjudged that the plaintiff take nothing by its action.

Plaintiff has appealed.

Cause reversed.

L. H. Southmayd and Jesse Turner, for appellant.

1. The fact that the administrator who sold that land in controversy to appellant was the cashier and a stockholder in said corporation does not affect the validity of the sale. 26 Am. & Eng. Enc. of L. 899-900; 7 Id. 634; 122 Ill. 293; 4 Ark. 357; 15 Am. & Eng. Enc. of L. 934; 63 Ark. 322; Morawetz on Corp. § 521; 68 F. 677.

2. The validity of the sale can not be attacked in this proceeding. The sale was, at most, voidable, and could be avoided by appellee, if at all, only by appropriate action taken in apt time in a court of equity. 17 Am. & Eng. Enc. of L. 993; 19 Ark. 499; 31 Ark. 74; 44 Ark. 267; 47 Ark. 413; 13 Ark. 507; 38 Ark. 78; 11 Am. & Eng. Enc. of L. 1148; 46 Ark. 25; 48 Ark. 248; 55 Ark. 85; 75 Ark. 40; Id. 184; 70 Ark. 88. Appellee's rights, if any, are based upon the theory of a trust, and of trusts and trustees chancery has exclusive jurisdiction, and indeed of each of appellee's defenses chancery has exclusive jurisdiction. 22 Enc. of Pl. & Pr. 9; 59 Ark. 5. Where the answer presents some defense exclusively cognizable in equity or where all the issues are cognizable but not exclusively so, the circuit court should transfer the cause. 44 Ark. 458. Having properly brought its suit at law, it was not appellant's duty to move to transfer--that was for appellee. 49 Ark. 75; Kirby's Digest, § 1282.

3. Before appellee was entitled to relief against the binding force of the probate orders, judgments and deed executed in pursuance thereof, the effort to avoid the sale must have been made in apt time, and appellant should have been tendered the amount of the purchase money, with interest, taxes, etc. 47 Ark. 421; 54 Ark. 644.

Sam R. Chew, for appellees.

1. There was never a fee simple title to the land in controversy in W. H. H. Lovett. Long before the Railway Company had been paid, and before it had executed deed, he died. His estate had only an equity in the land to the extent of the small payment he had made, but it had no fee, and appellant could not, through him, obtain one. Tiedeman, Real Prop. § 814; 178 Ill. 9; 44 L.R.A. 489; 59 Am. Dec. 590. There could be no finding under the proof, except for appellees, and the judgment for this reason should be affirmed.

2. The administrator of the estate being also a cashier of and a stockholder...