Green v. Holzer

• Decision Date: 17 May 1915
• Docket Number: 388
• Citation: 177 S.W. 903,118 Ark. 533
• Parties: GREEN v. HOLZER
• Court: Arkansas Supreme Court

177 S.W. 903

118 Ark. 533

GREEN v. HOLZER

No. 388

Supreme Court of Arkansas

May 17, 1915

Appeal from Garland Chancery Court; A. Curl, Special Chancellor affirmed.

STATEMENT BY THE COURT.

The facts as stated by the chancellor are substantially as follows:

On the 12th day of April, 1911, the defendants. Agatha M. Goodlet Janette Frisby, William Becker, Jr., deceased, Margaret Brock, Lucy Becker, Mamie and Frank Becker, minors, by guardian and next friend, Agatha M. Goodlett, and Edward Donnelly, Lawrence Donnelly, Dorothea Donnelly, minors, by their father and next friend, E. C. Donnelly, filed their suit in the chancery court against Florence Holzer, for partition of certain lands belonging to the plaintiffs and defendant as heirs at law of William Becker, deceased. Florence Holzer, the defendant, was regularly summoned but failed to appear and default was entered against her. The court found that the property was not susceptible of partition in kind and decreed a sale of the same. The property was sold and two of the lots were purchased by Otto Holzer. H. A. Green and J. A. Riggs became sureties on the bond executed by Holzer for the payment of the purchase money of the property, the bond being in the sum of $ 1,490. The sale was reported to the court and approved. Riggs and Green by consent of Holzer, intervened and were subrogated to the rights of Holzer in the land, and the court directed that upon the payment of the purchase money the commissioner should execute a deed to them for the property. The court found that the purchase money was past due and unpaid and ordered execution issued against Holzer, Riggs and Green for the purchase money. Execution issued and the sheriff levied the same on the property belonging to Riggs. At the sheriff's sale Riggs bought the property in for $ 1,490 and executed a bond with M. J. Henderson as surety for the payment thereof within three months. The amount named in this bond was not paid. After the maturity of the last bond Riggs and Green instituted the present suit against Otto Holzer and the heirs of William Becker, setting up that the sale under the partition decree was void for the reason that the land sold was the homestead of William Becker at the time of his death and was the homestead of his minor children at the time of the partition decree, and that this fact was concealed from the court, and therefore the sale was void. They asked that the entire proceedings growing out of the partition decree, including the sale of the property of Riggs, be set aside.

The court found that it was true that the land purchased by Holzer at the commissioner's sale, and for the payment of the purchase price of which Green and Riggs became surety on the bond of Holzer was, at the time of the death of William Becker, his homestead; that Frank and Mamie Becker were under twenty-one years of age at the time the land was sold under the decree for partition; that they were made parties to the suit for partition by their guardian, Agatha M. Goodlett that the petition for partition however, did not show, nor did any of the evidence in the suit for partition disclose that the land partitioned had been the homestead of their father, William Becker. It was alleged in the petition for partition that Frank and Minnie Becker were in need of their share of the property for their maintenance and education. The court further found that before the institution of the present suit by Green and Riggs to vacate the judgment for partition Frank and Mamie Becker had attained their majority and had executed and tendered to Green and Riggs a quitclaim deed to the property.

The court further found that there had been claims probated against the estate of William Becker, deceased, amounting to the sum of $ 550, and that there were no funds in the hands of the administrator with which to pay these sums, and that it would be necessary to use the proceeds of the land sold in the partition suit to pay these claims.

The court thereupon ordered that the administrator be made a party to the suit instituted by Riggs and Green and directed him to file a statement of the claims probated against the estate of William Becker remaining unpaid, together with a statement of the unpaid costs of administration of said estate in the chancery court, and directed that on the receipt of the purchase money for the property sold in the partition suit the same be subject to the further order of the court, and retained control of the case for any further orders that might be necessary for the protection of the parties and others "that may by proper proceedings became parties to the suit," and dismissed the complaint of the plaintiffs for want of equity. Green and Riggs have duly prosecuted this appeal.

Decree affirmed.

Thurston P. Farmer, for appellants.

1. In an action for partition, the court is without jurisdiction to order a sale of the homestead of minors, and a sale of their homestead under such an order is void, and can not be ratified by the minors after coming of age. 31 Ark. 145.

2. If the sale was void the Donnelly heirs did not part with their interest and have not and can not ratify the same. Moreover even if the proceedings had been regular and the sale valid, they were not protected by the bond required by statute. Kirby's Dig., § 5800; 119 S.W. 769; 112 S.W. 665; Knapp on Partition, 414, 415; Id. 423.

3. Before the petition for partition was filed and the sale made, the estate of Win. Becker, deceased, was being administered in the probate court of Garland County, a large amount in claims had been filed and allowed, and were and still are unpaid. The chancery court, after the probate court had taken charge of the estate had no authority to supersede the jurisdiction of the probate court in the matter of these claims.

M. S. Cobb, for appellees.

1. The judgment should be affirmed for failure of the appellants to present a sufficient abstract of the pleadings, records and evidence as required by rule nine. 80 Ark. 259; 88 Ark. 449; 75 Ark. 471; Id. 349; 83 Ark. 133; 84 Ark. 552; 85 Ark. 123; 101...