Gardner v. Ward
| Decision Date | 26 June 1911 |
| Citation | 138 S.W. 981,99 Ark. 588 |
| Parties | GARDNER v. WARD |
| Court | Arkansas Supreme Court |
Appeal from Garland Chancery Court; Alphonzo Curl, Chancellor affirmed.
STATEMENT BY THE COURT.
Miles B. Gardner died in the early part of the year 1887, owning a quarter section of land about a mile and a half from the city limits of Hot Springs, in Garland County, on which he resided. He left surviving him, his widow, Sophronia Gardner and Edward M. Gardner, an infant son about one year old. In August, 1887, after his death, another son was born, and he was called Miles B. Gardner, Jr. Miles B. Gardner left a will by the terms of which the lands above referred to were devised to his children. The will was duly probated, and the executors subsequently died. In 1900 H. E. Still was appointed guardian of the estate of said minor children. In 1904 the guardian made application to the probate court for the sale of said land for the support and education of said minors. At that time, Edward M. Gardner was 18 years of age and was a stout healthy boy, while his brother, Miles B Gardner, Jr., was an invalid. They lived with their mother. The mother asked for and obtained from the probate court, an allowance of $ 2,100 for expenses incurred in the support of said minors from the time of the death of their father until the application was made. The probate court made an order directing the sale of said lands for the support and education of said minors. Fred Ward became the purchaser at the sale for the sum of $ 2,300. The order of confirmation of the sale directed him to pay $ 2,100 of that sum to the mother of said minors. The guardian executed the deed to Ward for the land, and the same was approved by the court. Ward in turn executed a deed to Mrs. Gardner, the mother of the minors, for one hundred and twenty acres of said land, and retained himself the remaining forty. He paid to the guardian $ 200 and to Mrs. Gardner $ 400. This was in addition to the $ 2,100 claim which had been allowed in her favor. Mrs Gardner conveyed a two-thirds interest in the said 120 acres to T. McNall for another tract of land situated in the same county. Miles B. Gardner, Jr., died, and Mrs. Gardner and her son Edward moved on the land she had purchased from McNall, and they have since resided there. The 120 acres of land was divided up into a number of smaller tracts from one to forty acres in area. These parcels of land were sold to various parties by McNall and Mrs. Gardner, and the purchasers went into possession and have made substantial improvements on them, such as erecting new houses, repairing old ones, building small barns, and setting out small orchards, etc. The present suit was instituted on the 27th day of August, 1909, by Edward W. Gardner, in the Garland Chancery Court against Fred E. Ward and the other purchasers of said land. The object of the suit was to set aside the sale of these lands made by the probate court as being void and without jurisdiction. In 1906 Edward Gardner, while under the impression that he was twenty-one years of age, executed quitclaim deeds to most of the defendants for the lands in controversy. As a matter of fact, however, Ed. Gardner did not become twenty-one years old until March, 1907. As soon as the summons in the case was served upon J. A. Kinsey, he went to see Ed. Gardner about compromising the matter. He was accompanied by Bob Wish, an uncle of Ed. Gardner. After some negotiation, Kinsey paid Gardner $ 100 and received a quitclaim deed for that part of the land purchased by him. Kinsey told Gardner that the other defendants would like to compromise, and suggested that he might get a thousand dollars for the whole compromise. The suit, as far as Kinsey was concerned, was dismissed, and he is no longer an interested party. After Kinsey made his compromise, he told others of the defendants about it, and they in turn told still others. The remainder of the defendants gathered together, and concluded to go to the home of Mrs. Gardner and try to effect a compromise of the suit. They sent Bob Wish and one Waycaster on ahead of them. Mrs. Gardner lived about twelve miles from the city of Hot Springs, and her son, Ed. Gardner, lived with her. Bob Wish, who was her half-brother, came in and asked her where Ed. was. Mrs. Gardner replied that he had gone on a camp hunt. Wish insisted that he had not gone on a camp hunt, but had gone to one Hulsey's his father-in-law's. Mrs. Gardner says that one Martin, who was a friend of their son, had been there earlier in the evening, and had told him that the defendants were threatening him because he had brought suit against them. Mrs. Gardner got in the buggy with Bob Wish, admitting that her son had gone to his father-in-law's, and went with him out to meet the people who had come with him. When she met them, there were present the following: Owens, Hicks, Still, Long, and Mrs. Ford. All of them except Long were defendants in the suit. They then determined to go to Hulsey's to try to effect a compromise with her son. She went with them. The distance was twenty-six miles. Hulsey lived on the other side of Hot Springs. When they arrived at the top of the mountain about a mile from Hulsey's, they halted and counseled together. It was finally decided that Wish and Waycaster should go down to the house and bring Ed. Gardner back with them. After daylight Hulsey and Wish came to the top of the mountain, and left Waycaster at Hulsey's house. The whole party then went down to Hulsey's house, ate breakfast, counseled together, and with Ed. Gardner, until about 10 o'clock when they all repaired to a neighboring justice of the peace, where Ed. Gardner executed quitclaim deeds to the various defendants for the land they had purchased. As a consideration, he was paid various amounts, which in the aggregate reached about $ 150.
It is the contention of Ed. Gardner that these deeds were procured by intimidation, and the defendants maintain the contrary. Additional evidence in regard to this matter will be stated in the opinion. The chancellor found all the issues in favor of the defendants, and the plaintiff has appealed.
Decree affirmed.
J. B. Wood, for appellant.
1. The sale was void. The land was sold to pay a collusive debt. The evidence shows collusion to gain control of the estate. The sale is not complete until reported and approved by the court. Kirby's Digest, § 3798; 61 Ark. 80; 62 Id. 214; 47 Id. 419; 54 Id. 480; 51 Mo. 406; 21 Cyc. 136.
2. There is no law authorizing the probate court to sell a minor's land to pay a debt. The sale was absolutely void. 89 Ark. 284-287; 74 Id. 81; 71 Id. 220; 47 Id. 460; 33 Id. 425; 69 Ala. 466; 21 Cyc. 122.
3. The judgment of any court can be attacked by showing a jurisdictional defect apparent upon the face of the record, or that the court acted beyond its jurisdictional limits. 74 Ark. 81; 47 Id. 460; 23 Cyc. 1085-1087; 18 Wall. 350-356, 366; 23 Cyc. 1087; 94 Ark. 342.
4. There is no law authorizing the sale of a minor's land to pay debts. 67 Kan. 468; 20 N.E. 3; 25 Cent. Dig., § 301. Only the income of the estate could have been allowed. Kirby's Dig., § 3792; 83 Ark. 226; 63 Id. 450.
5. The land was a homestead. Art. 9, § 6, Const.; 65 Ark. 355; 69 Id. I.
6. The proceedings show fraud and collusion. 7 John. Ch. 150; 11 Am. Dec. 386; 16 How. 30; 18 Cyc. 811; 54 Ark. 630; 46 Id. 32; 21 Cyc. 107, 108; 2 Am. Rep. 570; Story, Eq., §§ 239-246; 9 Cyc. 450; 64 S.W. 329; 9 Cyc. 406; 35 N.E. 958; 28 L. R. A. 478; Kerr on Fraud and Mistake, 399, 400; Bisph. Eq., § 188.
E. W. Rector, for appellee.
1. The probate court had jurisdiction to make the order of sale; and if there was no abuse of discretion in the matter, its action will not be disturbed. 65 Ark. 355; 92 Ark. 611; 72 Ark. 101.
2. A purchaser does not have to look further than the order of confirmation. He is not bound to see that the proceeds of the sale are properly applied. 89 Ark. 288; 90 Ark. 170. Hence, if it were true that no allowance for past services for, and past support of, minors could be made, this would not affect the purchaser, as he had only to look to the order of the court.
3. A mother is not burdened with the support and maintenance of her minor children, but she is allowed compensation out of their estate for such support and maintenance. 29 Cyc. 1616; 32 Minn. 385. "Such allowance may be made, not only to provide for the future, but also to reimburse her for past expenditures." 29 Cyc. supra, and cases cited under note 89; 76 Ala. 534; 16 Ala. 734; 110 Cal. 267.
4. If the allowance of the claim was an irregularity, and the manner of payment an irregularity, such irregularities can not be taken advantage of in a collateral attack.
HART, J. WOOD, J., not participating.
OPINIONHART, J., (after stating the facts).
It is first contended by the plaintiff that, under the terms of the will, the probate court had no jurisdiction to sell the land in controversy. It is next contended by him that the sale is void, so far as Ward and the other purchasers are concerned because there was collusion between Ward and the mother of Edward Gardner in the procurement of the sale in the probate court. In other words, it is claimed by plaintiff that the evidence in the case shows that the whole proceeding under which the land was sold was for the purpose and with the understanding between Mrs. Gardner and Ward that she was, by the proceedings, to gain control of the larger part of the property, and get it out from under the control of the probate court. The views hereinafter expressed render it unnecessary to decide these two propositions of law, for we are of the opinion that the chancellor did not err in holding that the deeds executed on the 3d of September, 1909, by Edward...
To continue reading
Request your trial