Griffin v. Dunn

• Decision Date: 18 June 1906
• Citation: 96 S.W. 190,79 Ark. 408
• Parties: GRIFFIN v. DUNN
• Court: Arkansas Supreme Court

96 S.W. 190

79 Ark. 408

GRIFFIN v. DUNN

Supreme Court of Arkansas

June 18, 1906

Appeal from Johnson Chancery Court; Jeremiah G. Wallace, Judge reversed.

Cravens & Covington, for appellants.

The sale of the homestead by the administrator was void. 47 Ark 445; 50 Id. 729; 49 Id. 75; 56 Id 565; 37 Id. 316. Since the decision in 47 Ark. 445 the sale of a homestead may be conceded to be void, but prior to the act of 1873 such sales were common. 37 Ark. 316; 40 Id. 17. The sales were treated as void only as to the interests of the minors. But plaintiffs are estopped. 12 Am. & Eng. Enc. Law, pp. 542-8; 72 Ark. 446; 2 Herman on Estoppel and Res Judicata, secs. 937-8-9, 951, 954, 958; 24 Ark. 131, etc. They are also barred by laches and limitation. 75 S.W. 692; 61 Ark. 575; 52 F. 627; 35 N.E. 315; 30 Id. 874; 71 Ark. 209.

T. B. Pryor, for appellee.

The sale was void. 47 Ark. 445, 455. A married woman is not barred by the seven year statute of limitations. Nor by the five year statute as to judicial sales. 53 Ark. 410. The doctrine of laches does apply. 67 Ark. 320; 70 Id. 371. No estoppel is shown.

OPINION

MCCULLOCH, J.

R. R. Posey owned and occupied as his homestead a quarter section of land in Johnson County, and died in August, 1876, leaving surviving him his widow, Sarah Posey, and daughter, Martha R. Dunn, who was then an adult married woman. Her coverture continues to the present time. The tract of land was by an order of the probate court set apart to the widow as her homestead, but in June, 1878, the entire tract was sold, subject to the homestead right of the widow, by the administrator of the estate of said descendent for the purpose of raising funds to pay the debts of the estate, and was purchased by F. R. McKinnon. The sale was ordered and confirmed by the probate court. In November, 1878, McKinnon and Mrs. Posey, the widow, presumably acting under the belief that the sale made by the administrator subject to the homestead right of the widow was valid, and that McKinnon had obtained title to the land subject only to the widow's homestead right, exchanged conveyances, whereby McKinnon conveyed to the widow the west half of the tract, and she conveyed to him the east half. Appellants hold the said east half, containing 80 acres, under mesne conveyance from McKinnon. The widow died in July, 1901, and in September, 1903, appellee Martha R. Dunn and R. O. Herbert, her grantee of an undivided interest, brought ejectment to recover possession of the land. Appellants, among other defenses, alleged adverse possession held by them and their grantors since the date of the deed from Mrs. Posey to McKinnon in 1878, and pleaded the five year statute of limitation under the judicial sale made by the administrator. The defendants also pleaded certain equitable defenses unnecessary to enumerate here, and made their answer a cross-complaint, containing a motion that the cause be transferred to the chancery court, which motion was granted. Upon final hearing a decree was rendered in favor of the plaintiffs for the recovery of the land and rents, but allowing the defendants for taxes paid, and also for a portion, by way of subrogation, of the amount of the probated claims against the estate of Posey for the payment of which the land was sold by the administrator.

The sale of the homestead by the administrator was void because the court had no jurisdiction to order it. McCloy v. Arnett, 47 Ark. 445, 2 S.W. 71; Stayton v. Halpern, 50 Ark. 329, 7 S.W. 304; Nichols v. Shearon, 49 Ark. 75, 4 S.W. 167; Bond v. Montgomery, 56 Ark. 563, 20 S.W. 525.

The statute of limitation does not run against a cause of action in favor of the heirs for recovery of the homestead during occupancy by the widow, but an attempt by her to alienate the homestead is ineffectual, and operates as an abandonment of the homestead claim. In the event of such abandonment the right of action of the heirs becomes complete, and the statute of limitation begins to run against them. Garibaldi v. Jones, 48 Ark. 230, 2 S.W. 844; Killeam v. Carter, 65 Ark. 68, 44 S.W. 1032; McAndrew v. Hollingsworth, 72 Ark. 446, 81 S.W. 610.

In Kessinger v. Wilson, 53 Ark. 400, 14 S.W. 96, the five year statute of limitation under a judicial sale was pleaded against adult heirs whose right of action did not accrue until the coming of age of an infant heir more than ten years after the date of the sale. The court held that the statute ran from the date of the sale, but did not apply to a cause of action which arose in favor of the adult heirs after the expiration of five years from the date of the sale. The court there said: "It is manifest that the statute was never intended to be applied in such cases, but that its object was to require all parties to bring suits against purchasers at judicial sales within five years after the date of the sale for the enforcement of only such rights to recover the land sold as can be enforced in an action brought within that time, and to bar the recovery of such rights in any suit brought thereafter." The cause of action asserted by the plaintiff in the case at bar arose within five years from the date of sale. It arose upon the abandonment of the homestead by the widow in about five months after the sale, and, according to the construction of the statute in Kessinger v. Wilson, supra, was barred at the expiration of five years from date of the sale. It is said that the statute should be construed to apply only to causes of action for recovery of land which were complete and capable of being asserted when the sale was made, and to no other. The majority of the court are of the opinion that this is not the effect intended to be given to the statute by the framers thereof. There is certainly no reason found, either in principle or from the language of the statute, why it should not apply to all causes of action which come into existence and are complete within the period of five years from the date of the sale, provided that the period of time between the completion of the cause of action and the expiration of five years from date of sale is not too short to allow a reasonable opportunity within which the right may be asserted. A period of time too short for the reasonable assertion of the right would be equivalent to no time at all, and would be the same as if the right did not accrue within the five years. The statute plainly reads that "all actions against the purchaser, his heirs, or assigns, for the recovery of lands sold at judicial sales shall be brought within five years after the date of such sale, and not thereafter." Kirby's Digest, § 5060. While it does not apply to those who do not have a right of action within five years from the date, yet it would circumscribe the comprehensive language of the statute to say that it does not apply to causes of action which arise after the sale but within that period.

In addition to the homestead right, the widow had the right to claim dower in the land, which was never assigned, and she might have asserted this right after abandonment of the homestead. She also had the right to hold possession of the dwelling house and farm thereto attached until the dower should be assigned. Kirby's Digest, § 2704. The further question is, therefore, presented whether or not these two rights, or either of them, that is to say, the widow's unassigned dower right and her right to tarry in the mansion or chief dwelling house until dower...