Crosser v. Crosser

• Decision Date: 15 November 1915
• Docket Number: 245
• Parties: CROSSER v. CROSSER
• Court: Arkansas Supreme Court

180 S.W. 337

121 Ark. 64

CROSSER v. CROSSER

No. 245

Supreme Court of Arkansas

November 15, 1915

Appeal from Independence Chancery Court; G. T. Humphreys Chancellor; affirmed.

Decree affirmed.

Ira J Matheny and Samuel A. Moore, for appellant.

1. The commissioners were not sworn before or after they entered upon their duties as such, and they did not swear to their report as required by law. Kirby's Digest, § 5781.

2. Commissioners must conform strictly to the orders and judgment of the court. Kirby's Digest, §§ 5778, 5779, 5780 and 2726; 24 Am. & Eng. Enc. of L. (2 ed.), 229 230. In this case, they exceeded their authority when they divided property which was not included in the order and judgment of the court. Their report, and the decree of court confirming the same, are therefore void. 55 Ark. 562; 76 Ark 151; 81 Ark. 462; 92 Ark. 359-365.

3. The commissioners violated the law and the judgment of the court in not dividing the property in kind. There was no evidence, nor any order of court finding, that appellant was possessed of any money, yet they asked in their report, and the court thereupon ordered, that appellant pay appellee a certain sum of money. They were specifically instructed in the court's order that in case they were unable to divide the property in kind, they should advertise and sell it. The report shows also that they did not divide the real estate and personal property in kind. Since appellee gets the real estate for life and the personal property absolutely, the division is clearly unjust and inequitable. 5 Ark. 608-612; 92 Ark. 292-296.

4. The commissioners failed to take into consideration the $ 9,000 indebtedness owing by appellant which was secured by deeds of trust on all of his real estate. They were signed and acknowledged by appellee, she relinquishing all of her rights of dower and homestead. Appellee is entitled to dower only in his equity in said real estate. 68 Ark. 449; 64 Ark. 518-522.

J. B. McCaleb, for appellee.

1. There is no statutory requirement that commissioners appointed to set off and allot dower shall be sworn. They are a part or branch of the court, selected for a specific purpose. Their findings are scrutinized by the court, and when approved become a part of the decree of the court.

Section 5781, Kirby's Digest, does not apply to alimony or division of property under a decree for divorce.

2. Appellant's remaining contentions are based principally upon matters arising upon his exceptions to the report of the commissioners. He was given an opportunity to introduce evidence in support of his exceptions but elected not to do so. The court, after an investigation of the matters in detail, approved the report and entered a decree in accordance therewith. It resolves itself, therefore, into a question of fact to be determined from the evidence. It needs no citation of authorities that the findings of the chancellor will not be disturbed unless contrary to a clear preponderance of the evidence.

OPINION

SMITH, J.

The parties to this litigation were husband and wife, the wife being the plaintiff in the suit below in which she asked both a divorce and the setting aside to her of the share of the husband's property allotted the wife under section 2684 of Kirby's Digest, upon the dissolution of a marriage, by a divorce to the wife. The divorce was granted and appellant makes no complaint of this action of the court, but by this appeal he questions the division made of his property.

Upon granting the decree for the divorce the court appointed one S. B. Wycough as a master with directions "to make an accounting of all the defendant's real and personal property, and to submit such statement to this court at its next regular term." A report was filed by the master at the following term of the court, which purported to set out the property owned by appellant. Thereupon the court appointed three commissioners and directed that they "be and they are hereby appointed as commissioners for the purpose of assigning dower in the above described lands and premises, and the above-described personal property to the plaintiff, and they are hereby authorized to apportion and set aside to the plaintiff one-third in value of said lands and personal property, if the same can be fairly and equitably done, and in the event it be determined by said commissioners that said property, either real or personal, can not be equitably divided and apportioned in kind, then said commissioners are authorized to advertise and sell all of said property at public outcry to the highest bidder, on a credit of three months. * * * The said commissioners are hereby ordered to make a full report of their actions hereunder at the next term of the court." These commissioners made this report, but in their report there appeared the description of a number of tracts of land, together with a list of personal property, which had not been contained in the original report of the master. This report of the commissioners is a very elaborate one, and in it each tract of land is separately valued and each article of the personal property is appraised, and in this report the commissioners undertook to divide the lands in kind and to divide the personal property also. These commissioners appear to have inquired into the title by which appellant held his lands, and to have ascertained that he had title in fee simple to some of them while as to other portions he had only a tax title, and in the division of the lands this fact was taken into account, and there was a division in kind of these lands. It appeared from the report of these commissioners that there were outstanding mortgages executed on all these lands, securing an indebtedness of about $ 9,000, but it was shown by the report that all of said mortgages had been duly signed and acknowledged by appellee in which she had relinquished her right of dower and homestead in and to said lands. The further proceedings in the cause consisted in a hearing of appellant's exceptions filed to this report.

Among other exceptions filed to this report was that it was not sworn to by the commissioners. Appellant alleges that these commissioners should have taken the oath prescribed by section 5781 of Kirby's Digest. But that section relates to commissioners who have been appointed in partition suits for the division of lands, and does not apply to proceedings for the assignment of dower, or the assignment of the statutory allowance to the wife upon dissolution of the marriage. Moreover, this report was considered by the court and approved by it. The effect and purpose of this report was to advise the court as to the nature, character and value of appellant's property, both real and personal, and when the court approved the report and adopted the division made by the commissioners, that division thereby became ...