Crider v. Simmons

• Decision Date: 06 July 1936
• Docket Number: 4-4288
• Citation: 96 S.W.2d 471,192 Ark. 1075
• Parties: CRIDER v. SIMMONS
• Court: Arkansas Supreme Court

96 S.W.2d 471

192 Ark. 1075

CRIDER v. SIMMONS

4-4288

Supreme Court of Arkansas

July 6, 1936

Appeal from Woodruff Chancery Court; A. L. Hutchins, Chancellor reversed.

Decree reversed and cause remanded.

Ross Mathis and Verne McMillen, for appellants.

Jonas F. Dyson, for appellees.

BUTLER J. MCHANEY and BAKER, JJ., dissent.

OPINION

BUTLER, J.

J. W. Simmons, as administrator of the estate of E. W. Crider, deceased, presented his petition to the probate court of Woodruff county alleging that the personal property of his intestate was insufficient to pay the debts which had been proved against the estate, and praying for an order directing the sale of lot 13, block 28, Lynch's Addition to the town of Cotton Plant, Arkansas, to pay said debts. On October 24, 1932, the court made and entered the following order: "On this date is presented to the court a petition of the administrator asking for an order to sell lot 13 in block 28 of Lynch Addition to the town of Cotton Plant, Arkansas, to pay debts and expenses of the administration. The court being well advised in the premises as to the law and facts doth find for said petitioner: It is, therefore, by the court considered, ordered, and adjudged that it would be to the best interest of the creditors of said estate for said property to be sold, and the proceeds of said sale applied to said debts, and as there is no personal property or a sufficient amount to pay the allowed claims, said administrator is hereby directed to sell said property after having complied with the laws of this State in matters of sales of this character, and report his action to this court for its approval."

Subsequent to the date of this order, at the instance of the administrator, an appraisal was made of the said lot in the sum of $ 400. It appears that the sale was made and reported to the court, the report showing that at the sale Mrs. Lidie Simmons, the wife of the administrator, J. W. Simmons, had purchased said lot for the price of $ 270. It is uncertain on what day the sale was made or when the report thereof was filed with the probate court, but the court made an order on December 12, 1933, reciting the filing of the report, and, finding no objections had been filed thereto, confirmed the report and directed the administrator to make and deliver his deed as administrator to Mrs. Lidie Simmons and, of the amount of $ 270 bid, after collecting the same, to pay to Mrs. E. W. Crider, $ 90 as her dower interest therein. He was ordered also to pay $ 50 to an attorney for services in the matter of making the sale. On the same day Mrs. E. W. Crider executed to Mrs. Lidie Simmons a quitclaim deed conveying to Mrs. Simmons her dower interest in the lot sold, and on December 17, 1933, the administrator, J. W. Simmons, executed to Mrs. Lidie Simmons his deed as administrator to the said property.

Subsequent to the purchase by Mrs. Lidie Simmons, she insured the dwelling house situated on the lot with the Royal Exchange Assurance of London in the sum of $ 1,000. This policy was issued on April 7, 1934, after which the dwelling was totally destroyed by fire at a time when the policy was in full force and effect. On November 6, 1934, the appellants, who were the heirs of E. W. Crider, deceased, instituted an action in the chancery court of Woodruff county in which they sought to have set aside the sale and deed to Mrs. Lidie Simmons on the ground of fraud. They prayed that the title to the property be vested in fee simple in the appellants, and that the amount of $ 1,000 under the insurance policy be adjudged and decreed to them. J. W. Simmons and Mrs. E. W. Crider (styled in the complaint as Mrs. Mae M. Crider) were made party defendants. Mr. and Mrs. Simmons answered denying the allegations of fraud, alleging that the sale was regular, and that the contract of insurance was entered into at a time when Mrs. Simmons was in the legal possession of the property, and that she was entitled to the proceeds of said policy for which she prayed judgment against the insurance company. The insurance company answered, setting out a provision of the policy as follows: "This entire policy, unless otherwise provided by agreement indorsed hereon, or added hereto, shall be void if the interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the assured in fee simple."

It alleged that Mrs. Lidie Simmons was not the sole and unconditional owner of the property insured at the date of the policy; that, therefore, she was not entitled to recover under the provisions of the policy, and that same should be canceled and declared void.

Evidence was adduced on the issues joined, and a decree was rendered sustaining the sale to Mrs. Simmons, and the title conveyed by reason thereof to her by the administrator. The complaint was dismissed for want of equity, and judgment was rendered against the insurance company for the face of the policy. From that judgment the heirs of E. W. Crider and the insurance company have appealed. Appellee, Mrs. Lidie Simmons, has cross-appealed on the ground that since the insurance company has denied liability it became liable to appellee for twelve per cent. penalty and a reasonable attorney's fee to be ascertained by the trial court on remand.

As this is a collateral attack on the proceedings in the probate court, the appellees rely upon § 181 of Crawford & Moses' Digest, which provides that the finding and recitals of a decree of the probate court authorizing a sale by an administrator, and ordering the same, that the administrator was duly and legally appointed, etc., and that the facts set forth in the petition which entitled the administrator to make the sale, shall be conclusive on all parties claiming an interest in said sale save upon direct appeal to the circuit court, and that the finding and judgment of the probate court shall not be open to collateral attack save for fraud or duress.

The order set out contains none of the recitals of the requirements prescribed by statute as preliminary requisites for the sale of the real estate of a decedent for the payment of his debts, §§ 153, 156, 157, 158, 161, Crawford & Moses' Digest, and, therefore, no presumption arises as to the regularity of the sale. By its express terms, the statute provides for collateral attack on a judgment for fraud or duress. In Watson v. Lester, 182 Ark. 386, 31 S.W.2d 955, in holding that a judgment of the probate court was open to collateral attack, § 181 of Crawford & Moses' Digest was considered, and it was held that "as fraud vitiates everything," and that such was proved, the judgment of the probate court should be set aside, and the deed based thereon was ordered canceled.

The lot involved had a dwelling on it, and E. W. Crider, in his lifetime, had purchased the property for the sum of $ 400 but we are of the opinion that a preponderance of the evidence establishes its value at not less than $ 1,000, and, at the time of its purchase by Crider, it was insured for $ 1,500. At the time of the sale under the probate court proceeding, the dwelling situated on the lot was insured for $ 500, and afterward Mrs. Lidie Simmons procured insurance on the same in the sum of $ 1,000. While it was not in a desirable residential district, it seems clear that the intrinsic value was at least in that amount. It was a six room cottage, built of finished lumber with brick pillars and canvassed and papered on the inside. Mr. Biatt, who sold the house to Mr. Crider for $ 400, explained that he sold the property because he was living in Arizona, and had lived there about two years at the time of the sale; that he had to leave Cotton Plant on account of his health, and that he did not think he received the full value of the property. Two of the appraisers testified in the case. ...