Harris v. Watson

Decision Date12 November 1892
Citation20 S.W. 529,56 Ark. 574
CourtArkansas Supreme Court

APPEAL from Jackson Circuit Court in chancery, JAMES W. BUTLER Judge.


E. L Watson filed his complaint in the Jackson circuit court in chancery on the 11th of August, 1887, and stated therein that "John Harris died in 1872, leaving as his heirs Benjamin Harris, John G. Harris and Elizabeth Harris, leaving also considerable personal estate to the value of about $ 5000 that on the same day Frank Wishon was appointed administrator. That the intestate owed about $ 12,500; and to the plaintiff $ 342.89, also to Watson & Weast $ 529.73 Watson & Son $ 728.25 and Watson & Ingalls $ 225.45; which had been assigned to plaintiff, making in all $ 2026.32, inclusive of interest. That Wishon made a final Settlement with the probate court, showing a balance due of $ 166.02. That, on the 14th day of May, 1880, J. R. Loftin was appointed administrator in his stead. That when intestate died he owned the following lands: Northwest quarter of northeast quarter, section 31, southwest quarter, south half of northwest quarter, north half of southeast quarter of southeast quarter, section 30, township 14 north, range 1 west. That the son, J. G. Harris, and daughter, Elizabeth Harris, were infants when he died, and that the east half of southwest quarter and west half of southeast quarter of section 30 were set apart by the probate court as a homestead until the infants should become twenty-one years of age. That, the personal property proving insufficient to pay the debts, Loftin obtained an order from the probate court at the July term, 1880, to sell the homestead subject to the right of the infants. That the lands were accordingly sold on the 4th day of September of the same year to the plaintiff, he paying for the east half of southwest quarter $ 534.00, and for the west half of the southeast quarter $ 534.00, which sums were paid to the said administrator.

"That, on the 13th day of October, 1880, the sale was approved, and the court ordered a deed to be executed to the plaintiff, which was accordingly done May 6, 1881. That the sum thus paid by plaintiff was applied to the extinguishment of the debts of the estate pro rata, leaving a large part of the debts unpaid. That Loftin afterward made a final settlement with the court, and was discharged, and that Robert Brown had been appointed administrator; but that he had no other assets in his hands, except said homestead, which had been unlawfully sold. That said infants have now become of full age. That plaintiff has become subrogated to the rights of the creditors to the amount of his bid, $ 1068.00, with interest from the 4th day of February, 1881.

"Plaintiff prayed that the lands be sold, that the proceeds be applied to paying his debts, and that the residue, if any, be paid to said administrator."

The defendants answered, alleging, among other things, that the children of John Harris, deceased, arrived of age as follows: Benjamin Harris on the 30th day of March, 1887, J. G. Harris on the 19th of July, 1880, and Elizabeth Harris on the 30th of July, 1883; and that plaintiff did not sue within two years after his cause of action accrued. They also demurred to the complaint.

After hearing the evidence adduced by both parties, "the court found that the ages of the children were proved as stated, and that the homestead had been duly set apart by the probate court; that the plaintiff took nothing by the purchase of the homestead, but that he was entitled to be subrogated to the rights of the creditors to the amount of $ 1068.00, deducting the amount of $ 147.41 received by plaintiff as a creditor, leaving a balance of $ 920.59, which was allowed to bear interest at the rate of six per cent from February 4, 1881, making the amount due at the date of the decree $ 1486.69. The court decreed that the same be a lien on the land, that it should be sold for the payment thereof, and that the defendants pay the cost of the suit. The defendants appealed."

Judgment reversed and cause remanded.

U. M. & G. B. Rose and S. R. Allen for appellants.

1. It is admitted that where a sale is merely void, but the property is sold to pay a debt that is justly due, and the property is subject to sale to pay the debt, the right of subrogation exists. 29 Ark. 47; 50 id. 361. But the property sold must be subject to sale for the payment of the debt for which it is sold. Freeman, Void Jud. Sales, sec. 35. The sale in this case was an absolute nullity. 47 Ark. 454. And against public policy. ib.

2. Gantt's Digest, sec. 3162, is in force yet.

3. Nichols v. Shearon, 49 Ark. 76, goes to the verge of the law. In this case Watson was purely a volunteer, and not entitled to subrogation. 25 Ark. 129; 44 id. 507; 47 id. 112; 53 id. 109.

4. All persons aiding in the commission of a misdemeanor are principals. Watson was a purchaser and instigator of the sale, and liable to indictment. Gantt's Digest, sec 3162; 18 Ark. 198; 45 id. 361; 47 id. 188; 49 id. 160. He cannot, therefore, come into equity with clean hands, claiming the right of subrogation. 1 Pom. Eq. sec, 402; 1 Whart. Cont. sec. 340; 4 Dill. 207; 13 Wall. 523; 5 Barb. 616; 53 Ark. 275.

5. The claim is barred by limitation. The statute allows two years for the probate of claims and two years more for the pursuit of heirs and distributees, and no more. Civil Code, sec. 470. This section has never been repealed.40 Ark. 440.

Robert Neill and J. M. Moore for appellee.

1. The homestead became subject to sale for the payment of debts when the youngest child became of age The heirs took subject to the debts of their ancestor. 48 Ark. 237-8; 47 id. 452.

2. The sale was void, but appellee paid his bid, which was used by the administrator in paying debts of the estate and he is entitled to be subrogated to the rights of the creditors whose debts he has paid. 29 Ark. 47; 49 Ark. 76.

2. One who purchases at a void judicial sale, and pays his money in good faith is not regarded as a volunteer. 50 Ark 365; 33 id. 490; 45 id. 153; 47 id. 430; 53 id. 559; Sheldon on Subrogation, sec. 209; Freeman, Void Jud. Sales 52-53; 29 Mo. 152; 1 Dev. & Bat. Eq. 425.

3. The act of 1873 was repealed by the constitution of 1874. But if in force, it is directed only against the seller. 45 Ark. 366.

4. Sec. 470 of the Civil Code is repealed by the constitution of 1874. There is no statute bar against the enforcement of claims allowed by the probate court.54 Ark. 67 37 id. 158; 48 id. 282.


BATTLE, J., after stating the facts as above reported.

The sale of the lands,...

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