Fleming v. Cardwell

• Decision Date: 24 May 1909
• Citation: 119 S.W. 654,90 Ark. 500
• Parties: FLEMING v. CARDWELL
• Court: Arkansas Supreme Court

119 S.W. 654

90 Ark. 500

FLEMING v. CARDWELL

Supreme Court of Arkansas

May 24, 1909

Appeal from Greene Chancery Court; Edward D. Robertson, Chancellor reversed.

Decree reversed and cause remanded.

Johnson & Burr, for appellant.

1. The complaint states a cause of action under Kirby's Dig § 5789. Cardwell and Bray were commissioners to make partition, and the purchase and sale were void. Ib §§ 5778-9, 5780-1-2-3 and 4.

2. As commissioners, their relations were inconsistent with being purchasers. 112 S.W. 373-381. Their duties created a trust. Kirby's Dig. § 5781.

3. Sound policy forbids one who has a duty to perform with reference to a sale to become a purchaser. Brown v Nelms, 112 S.W. 373; 20 Gratt. (Va.) 1; Kirby's Dig. § 5789.

J. D. Block, for appellee.

Reviews Kirby's Digest, §§ 196-7, 5789, 5778, etc., and 86 Ark. 368, and contends that commissioners under § 5778 are not inhibited from purchasing. The demurrer was properly sustained.

HART J. Mr. Chief Justice MCCULLOCH and Mr. Justice BATTLE dissent.

OPINION

HART, J.

William Barr died seized of certain lands in Greene County, Arkansas. His heirs at law brought suit in the Greene Chancery Court for partition of the lands. William Guine Fleming, the plaintiff herein, and his brother, C. V. Fleming, who were his grandchildren, and who each inherited an undivided one-eighth interest in his estate, were parties to the suit. John R. Thompson, J. F. Cardwell and E. S. Bray were appointed commissioners to examine and make partition of said lands. Thompson failed to qualify as commissioner; but Cardwell and Bray proceeded to act, and reported to the court that said lands could not be divided. Their report was duly approved and confirmed. G. T. Breckenridge, clerk of the court, was then appointed as commissioner to make the sale of the lands. Said Cardwell and Bray became purchasers at the sale. Upon their paying the purchase price, the court directed a deed to be made to Cardwell and Bray, which was accordingly done, and the sale to them was by the court duly approved and confirmed. Subsequently C. V. Fleming died, intestate, leaving the plaintiff herein as sole heir at law. Bray conveyed his undivided half interest to Cardwell.

The present bill was filed by the plaintiff, William Guine Fleming, against the defendant, J. F. Cardwell, to set aside said sale, and to cancel the deed from G. T. Breckenridge as commissioner to J. F. Cardwell and E. S. Bray as a cloud on his title.

The defendant filed a demurrer to the bill, on the ground that the complaint did not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and, the plaintiff electing to stand upon his complaint, a decree was rendered dismissing it for want of equity. The plaintiff has duly prosecuted an appeal to this court.

The only question presented by the record is, should the sale be set aside because the commissioners appointed by the court to partition the land became the purchasers at a sale of the land decreed to be made for the purpose of partition?

We think the question should be answered in the affirmative. It is not claimed that there was any actual fraud in the purchase; but we are of the opinion that commissioners appointed by the court to make partition belong to the forbidden class who may not purchase at all, however fair their intentions. The rule stands upon grounds of public policy, and "upon our great moral obligation to refrain from placing ourselves in relations which ordinarily excite a conflict between self-interest and integrity." The primary object of a partition suit is a division of the land. As was said in the case of McGee v. Russell, 49 Ark. 104, 4 S.W. 284: "In proceedings for partition of land, each party has a right to have his interest set apart in kind, so far as can be done without material detriment to the interest of the other; and where the commissioners report that they cannot make partition without great prejudice to both parties, they should state the facts on which their conclusion is based."

The duties of the commissioners are more than evidentiary. They act in an advisory capacity to the court. In equity, if necessary, they may allow...