Gibson v. Herriott

• Decision Date: 14 November 1891
• Citation: Gibson v. Herriott, 17 S.W. 589, 55 Ark. 85 (Ark. 1891)
• Parties: GIBSON v. HERRIOTT
• Court: Arkansas Supreme Court

17 S.W. 589

55 Ark. 85

GIBSON v. HERRIOTT

Supreme Court of Arkansas

November 14, 1891

APPEAL from Jefferson Circuit Court in chancery, JOHN A. WILLIAMS Judge.

Decree reversed and cause remanded.

W. P. & A. B. Grace for appellants.

1.We accept the rule that a trustee to sell for others cannot either directly or indirectly, purchase for his own benefit.41 Ark. 269.But in this case there is no proof of fraud, and the only evidence is the slight presumption which might arise from the fact that three days after the sale the administratrix bought in her own right from the purchaser.See33 Ark. 585.The sale was made fairly and honestly, and without collusion or fraud.The sale was valid at the time it was made, and no subsequent act of the administratrix could invalidate it.

2.The probate court had the power to either reject or confirm the sale, "but in the exercise of this discretion a proper regard is had to the interest of the parties and the stability of judicial sales."Rorer, Jud. Sales, sec 106.

3.Irregularities, if any, not amounting to fraud, were cured by confirmation.25 Ark. 52.The order of confirmation related back to and carried title as from the date of sale.Rorer Jud. Sales, sec. 109.This case falls clearly within the rule in 33 Ark. 585.There was no understanding whatever at the time that the administratrix should share in the benefits of the sale.

Thomas J. Ormsby, M. L. Bell and Thomas B. Martin for appellee.

1.The intention of the statute is that an administrator, at the time the sale is made and report and confirmation sought, should not in any manner be interested.Mansf.Dig., sec. 176.If he is, the sale cannot stand if attacked.41 Ark. 269.It was a fraud to conceal the fact that she had bought from the purchasers.Rorer, Jud. Sales, sec. 107.An administration sale is a judicial sale, and passes no title until confirmation.47 Ark. 419;18 Vt. 394;9 Cal. 181.Courts of equity, from motives of public policy, declare such sales fraudulent.4 How., 559;47 Ill. 114, 115;2 Johns. Chy., 252;23 Ark. 622;34 id., 63;33 id., 575;ib., 294;8 Wheat., 421;10 Pet., 269;6 Wheat., 481;9 Paige, 649;43 Ill. 123; 11 Foster (N. H.), 70;4 Johns. Ch., 120;22 Penn., 327;30 Ark. 48;11 Wall. 236;36 Ark. 399;40 id., 393;20 Mo. 294; 3 Green (N. J.), 87;44 N.Y. 237.

2.No plea of limitation was interposed below.Wood on Lim., sec. 7.At law, if not pleaded it is waived.78 Ill. 81;31 Ark. 684;29 Oh. St., 245.Equity follows the law.43 Ark. 484.But the administratrix held the property as trustee, 26 Ark. 447, and her possession was not adverse.Wood on Lim., p. 419;Perry on Trusts, vol. 2, p. 493;2 Des.(S. C.), 233; 4 id., 77; 2 Marsh.(Ky.), 445;22 Ark. 6.In this case the administratrix has never been discharged, and the trust still subsists.46 Ark. 35.See also7 Johns. Chy., 114;16 Ark. 124;Wood on Lim., pp. 113, 114;99 Mass. 213.

3.The claim is not stale, nor can laches be imputed.28 Beav., 303; 2 Hawks (N. C.), 486;6 Wheat., 497;4 How., 561;16 Ark. 127.

W. S. McCain for appellants in reply.

1.An administrator cannot purchase at his own sale in Arkansas.Several States decline to follow this rule.2 Woerner, Am. Law of Adm., sec. 234, and note.

2.There is no proof that the administratrix was interested in the sale, but this court is asked to declare that, after a valid sale has been made by an administrator, he is still disabled from negotiating with the purchaser until after confirmation.Ratione cessante, lex cessat.See24 Grat.(Va.), 225;6 Harr. & J. (Md.), 78, 80;79 Va. 602;97 Mass. 198.

3.A purchase made by an administrator per interpositam personam is not void, but voidable only.13 Allen, 417;110 Mass. 373;46 Ark. 25.The right to avoid may be lost by acquiescence.36 Ark. 383;Pom. Eq., secs. 818, 820;34 Ark. 467.In equity it is not essential to plead the statute of limitations.39 Ark. 163.The length of time depends upon the peculiar circumstances of each case.22 Ark. 6.The time is never longer in equity than at law.43 Ark. 484, The statute as to judicial sales is five years, and married women have no immunity under the act.47 Ark. 558.When Mrs. Gibson took a deed in her own name and placed it on record, this was a declaration of hostility.50 Ark. 141.Limitation confers an affirmative title.34 Ark. 534, 547.

4.The decree as to rents is erroneous.Freeman on Judg., 150;52 Ark. 381.

Met L. Jones also for appellants.

There is not an incident in the entire transaction upon which to base a charge of fraud.Circumstances of mere suspicion are not sufficient.38 Ark. 419.The onus was on the attacking parties.25 Ark. 225;Story, Eq. Jur., 713.Even if the sale was voidable, appellees are barred by their acquiescence for so long a time.34 Ark. 467.Constructive fraud is all that can be claimed in this case, and the doctrine of constructive fraud does not apply to sales under process of law.3 J. J. Marsh., 644;Lord Raymond, 724;4 Dall. 108.

BATTLE, J. MANSFIELD, J., did not participate.

OPINION

BATTLE, J.

Solomon Walton died on the 4th of November, 1876, in Jefferson county in this State, intestate, leaving Belle Herriott, Rosa E. Lindsay, Kate Hinton and Sallie E. Whitley, who were his children, his only heirs him surviving.He was at the time of his death a married man, and left his wife, M. A. Walton, who is now the wife of John W. Gibson, surviving.At his death he was the owner of personal property and about 860 acres of land, of which 265 acres were cleared and in cultivation; and was much in debt.Shortly after his death Mrs. Walton administered on his estate; and sometime thereafter dower in his land was set apart and assigned to his widow.His personalty not being sufficient to pay his debts, his administratrix applied to the Jefferson probate court for an order to sell the lands which had not been assigned as dower, and the reversion in the other, to pay the debts remaining unpaid.The probate court granted the application at its July term, 1879, and authorized and directed the administratrix to sell all the lands, including the reversion in the land assigned to the widow as dower.On the 24th of September, 1879, the land which had not been assigned to the widow was sold at public auction to E. W. Martin and F. J. Wise at and for the sum of $ 2800, they being the highest bidders therefor, and the other land was sold to Frank Tomlinson, subject to the dower, for $ 750, no one offering more for it.Martin and Wise, not being able to comply with the terms of the sale, induced Louis and Joseph Altheimer to take their bid.Before they did so they purchased from Tomlinson the right, claim and interest acquired by him at the sale and procured from him an assignment of his bid.They(the Altheimers) having complied with the terms of the sale, the administratrix, on the 27th of September, 1879, conveyed to them the said lands and reversion, reserving a lien for the unpaid purchase money.Attempting and failing to purchase of the widow her interest in the lands set apart to her as dower, they proposed to sell to her the lands and reversion in lands conveyed to them.Persuaded by her friends to accept this proposition, she purchased the land and reversion on a credit of four years, agreeing to pay one thousand dollars more for it than the sum for which she sold it.In pursuance of their agreement the Altheimers, on the 30th of September, 1879, conveyed to her the lands, including the reversion.Afterwards, on the 15th of October, 1879, the administratrix made a written report of the sale of the land, including the land assigned as dower, made by her, as evidenced by her conveyance to the Altheimers, to the probate court, which on the same day approved the sale; and, with the proceeds of the sale so approved, the administratrix paid the said debts of her intestate.

At the death of Solomon Walton the land was in bad condition; the houses were dilapidated; only a few of them were fit for use.The fences on it were not sufficient to protect the crops, which were thereafter grown on it, against the trespasses of cattle.There were 265 acres cleared and prepared for cultivation.The annual rental value of the land was $ 800 or $ 1000.The widow attempted to rent it for $ 800, but failed.After she purchased it from the Altheimers, she cleared 230 acres of it, twenty or thirty acres of which were on the land which was set apart to her as dower; built fifteen tenant houses on the land; dug eight or ten wells; put a new fence around the cleared land as often as twice, one and a quarter miles of which was a wire fence; erected on the land a large barn, a new gin house, saw and grist mills and cotton press; put in the gin house a new cotton gin; attached to the saw and grist mills and cotton gin new steam machinery so as to operate them by steam; and expended a large sum of money in improving the land.The annual rental value of the land, after these improvements were made, has been and is $ 2500.

After this, on the 13th day of July, 1887, Belle Herriott, Rosa E Lindsay, Kate Hinton, and their husbands, and William M. and Daniel E. Whitley, minors, the heirs of Sallie E. Whitley, who is dead, by their next friend, brought this action in the Jefferson circuit court against M. A. Gibson and her husband.They alleged in their complaint that the sale to the Altheimers and the conveyance by them to the widow were fraudulent, and asked that the deed executed by the administratrix as before stated be canceled, and that Mrs. Gibson be declared to be a trustee holding all the land, except her life estate therein which was her dower, in trust for them.The defendants answered, but did not plead the statute of limitations.The circuit court...