Hart v. Wimberly

• Decision Date: 28 February 1927
• Docket Number: 448
• Citation: 296 S.W. 39,173 Ark. 1083
• Parties: HART v. WIMBERLY
• Court: Arkansas Supreme Court

296 S.W. 39

173 Ark. 1083

HART v. WIMBERLY

No. 448

Supreme Court of Arkansas

February 28, 1927

Appeal from Clark Chancery Court; C. E. Johnson, Chancellor affirmed.

Decree affirmed.

J H. & D. H. Crawford and McMillan & McMillan, for appellant.

J O. A. Bush, for appellee.

MCHANEY J. SMITH, J., dissenting.

OPINION

MCHANEY, J., (on rehearing).

Since this case was originally submitted there has been a change in the personnel of this court, which has necessitated a reconsideration of the whole case on petition for rehearing, and a majority of the court as now constituted agree to the opinions herein expressed. The principal question arising herein is the jurisdiction, or power, of a probate court to order a sale of the minors' homestead for the payment of debts.

In September, 1910, J. H. Wimberly died, a widower and intestate, in Clark County, the owner of a rural homestead, with three minor children, Vivian, Dexie, and R. W. Wimberly, age 14, 12, and 8 respectively, and owing some small debts of no considerable amount. On October 10 following, a neighbor, W. E. May, was appointed administrator, and duly qualified. He thereafter, on October 19, 1911, applied to the probate court for an order to sell the lands of his intestate, incorrectly describing them, for the payment of debts probated against said estate, in which petition he stated "that the personal property belonging to the said estate is not sufficient to pay the debts." It is nowhere stated that the land described, for which a sale was asked, was the decedent's homestead, nor is any mention made of said minor children, but we assume that the application for letters of administration, which is not found in the record, correctly sets out the names and ages of such children. On the next day after the application was filed, October 20, the court granted the petition, and made an order directing the administrator "to sell the said land at the late residence" of deceased, on November 29, 1911, and to report his sale. Sale was had pursuant to the order, report was filed December 23 and approved, and deed ordered made to purchaser on payment of purchase price of $ 332.46 on January 15, 1912. Deed was made to M. B. Mullins, and, through mesne conveyances, to appellant, W. S. Hart. On a trial the court found all the facts against appellants, and decreed a cancellation of the sale above described and all subsequent deeds and deeds of trust in that chain of title as being void, and that appellees are the owners of said land; that appellants, Hart and Arkadelphia Milling Company, should pay R. W. Wimberly $ 100 for one-third value of timber cut, with interest, and that Evans, Stone and Wimberly recover from Hart and Nowlin-Carr Company $ 200, with interest, for oak timber cut, and that the said heirs recover from Hart $ 192 for pine timber sold to Marlar Lumber Company. The court set-off all claims of appellant Hart for taxes and improvements against the rents and profits. From the judgment against them Hart, Arkadelphia Milling Company and Nowlin-Carr Company have appealed.

The sale of the homestead of a minor by order of a probate court, for the payment of debts of the decedent, is void, as the probate court has no such jurisdiction. Such a sale is void for lack of jurisdiction under both the Constitution of 1868 and 1874. See art. 9, §§ 6, 10, Const. 1874; art. 12, §§ 3, 4, 5, Const. 1868. In the case of Bond v. Montgomery, 56 Ark. 563, 20 S.W. 525, 35 Am. St. Rep. 119, it is said;

"Under the Constitutions of 1868 and 1874 the probate court had and has no jurisdiction to order the sale of a homestead of a deceased person for the payment of his debts, during the minority of his children, or so long as his widow remains unmarried or does not abandon it, or shall not be the owner of a homestead in her own right. During this time the homestead is exempt from sale for the payment of the debts of the deceased owner. The order of sale in this case was therefore an absolute nullity."

In Stayton v. Halpern, 50 Ark. 329, 330, 7 S.W. 304, Chief Justice COCKRILL said:

"The policy of exempting the homestead from sale after the death of the debtor for the benefit of the widow and minor children was continued by the Constitution of 1874, without abating the right as it existed under the Constitution of 1868 and the act of 1852."

In Ex parte Tipton, 123 Ark. 389, 185 S.W. 798, it is said:

"(4). A minor, being under disability, cannot waive his right to a homestead during minority. He can neither waive nor abandon his homestead rights. So that, at the time Merrill v. Harris was decided, it was settled in this State that, under the Constitutions of 1868 and 1874, the probate court had no jurisdiction to order the sale of a homestead of a deceased person for the payment of his debts during the minority of his children, or so long as his widow remains unmarried and does not abandon it, or shall not be the owner of a homestead in her own right. During this time the homestead is exempt from sale for the payment of the debts of the deceased owner. The order of sale in such cases is void."

Probate courts have "only such special and limited jurisdiction as is conferred upon them by the Constitution and statutes, and can only exercise the powers expressly granted and such as are necessarily incident thereto," as was said in Lewis v. Rutherford, 71 Ark. 218, 72 S.W. 373; Beakley v. Ford, 123 Ark. 383, 185 S.W. 796; and neither by the Constitution nor the statutes have they been given any such power. Indeed, the Legislature could not confer jurisdiction on such courts, as it would be in direct conflict with the Constitution.

In Griffin v. Dunn, 79 Ark. 408, 96 S.W. 190, the court said:

"The sale of the homestead by the administrator was void, because the court has no jurisdiction to order it."

There is no provision anywhere in the law of this State for an administrator to sell a minor's homestead while a minor, for any purpose. The guardian may sell his minor ward's homestead for support and education, when necessary ( Merrell v. Harris, 65 Ark. 355, 46 S.W. 538, 41 L. R. A. 714, 67 Am. St. Rep. 929), but the administrator cannot do so. The administrator cannot sell the homestead subject to the homestead rights. Griffin v. Dunn, supra; McCloy v. Arnett, 47 Ark. 445, 2 S.W. 71; Stayton v. Halpern, supra; Nichols v. Shearon, 49 Ark. 75, 4 S.W. 167; Bond v. Montgomery, 56 Ark. 563, 20 S.W. 525.

In Neeley v. Martin, 126 Ark. 1, 189 S.W. 182, it is said:

"At the time of the sale of the land in suit by the administrator of Jesse Martin, to pay the debts of his estate, these lands constituted the homestead of his minor children, and the sale was therefore void." See Rushing v. Horner, 130 Ark. 21, 196 S.W. 468; Johnson v. Taylor, 140 Ark. 100, 215 S.W. 162; Turner Heirs v Turner, 141 Ark. 48, 216 S.W. 44.

Counsel for appellants substantially concede that the foregoing is correct, but contend that, the statute for the sale of land to pay debts having been complied with, and the sale approved by the court, the order of the probate court is not open to collateral attack. A complete answer to this is that there is no statute and could not be for the sale of land which is a homestead for the payment of debts. The order of the probate court is void ab initio. It is coram non judice, and is therefore open to collateral attack. A void judgment or order may be attacked collaterally Waggener v. Lyles, 29 Ark. 47; McDonald v. Ft. S. & W. Rd. Co., 105 Ark. 5, 150 S.W. 135; Dalton v. Bradley Lumber Co., 135 Ark. 392, 205 S.W. 695. There is some authority for holding that an action to obtain a decree declaring a judgment void ab initio is not a collateral attack. Hooper v. Wist, 138 Ark. 289, 211 S.W. 143, citing 15 R. C. L. 838, par. 311; Stumpff v. Louann Provision Co., ante, p. 192. Moreover, this contention of counsel is contrary to the decision of this court in Beakley v. Ford, supra, where it is said:

"The order of the probate court under review contains no recitals that would bring it within the exercise of the jurisdiction conferred upon it by the statute. The probate' court having no such common-law jurisdiction, and proceeding solely by virtue of statutory authority, its jurisdiction to exercise such authority must appear from the record, and will not be presumed. Gibney v. Crawford, 51 Ark. 34, ; Hindman v. O'Connor, 54 Ark. 627 at 627-43, ; Morris v. Dooley, 59 Ark. 483 at 483-87, ; St. L. I. M. & S. R. Co. v. Dudgeon, 64 Ark. 108 at 108-10, . See also Willis v. Bell, 86 Ark. 473, ."

In the case of Ex parte Tipton, this court said:

"In the application of this rule we think the record of the probate court in the matter of selling the minor's homestead upon the application of the guardian should show the fact that there were no debts, and, the record being silent on that point, the order of sale was void."

It must therefore appear from the record that the land of the decedent which is to be sold to pay debts is other than the homestead, and, this not appearing, was sufficient to advise a purchaser that he acquired no title. It appears from the order of sale and confirmation that the land to be sold was "at the late residence of J. H. Wimberly," which would be notice that it was his homestead. But that is unimportant, since it must affirmatively appear on the record that the land proposed to be sold for debts is not the homestead of the minor before the probate court can have any jurisdiction at all. A purchase of a minor's homestead at a sale for the payment of debts cannot be protected because the proceedings appear regular for the sale of lands other than the homestead.

The main contention of counsel for appellant seems to be that this case comes...