Henderson v. Henderson

• Decision Date: 13 October 1947
• Docket Number: 4-8321
• Parties: Henderson v. Henderson
• Court: Arkansas Supreme Court

204 S.W.2d 911

212 Ark. 31

Henderson v. Henderson

No. 4-8321

Supreme Court of Arkansas

October 13, 1947

Appeal from Pulaski Chancery Court; Frank H. Dodge, Chancellor.

Reversed with Directions.

Kenneth C. Coffelt, for appellant.

J H. Carmichael, for appellee.

OPINION

Smith J.

It is sought in this case to partition a homestead. The parties in interest are two brothers, M. A. and H. B. Henderson, and Carrie M. Henderson, their mother. The suit was filed in the name of Carrie M. Henderson, the mother, and M. A., one of the sons, against H. B. Henderson, the other son. An accounting for and a division of certain money and personal property was also prayed, but that division has been made and that question has passed out of the case. The complaint alleged that the brothers own jointly a certain 30-acre tract of land on which the mother has resided for many years, and two adjoining 40-acre tracts of land, all of which comprise and are a part of their mother's homestead, the father of the two sons having died many years ago.

It was alleged that the mother has a dower and homestead interest in the real estate, and that "she consents to the bringing of this suit for partition and asks that her dower in the real estate be protected." It was alleged that the real estate is not divisible in kind and it might be necessary to sell it and divide the proceeds of the sale. It was further alleged that the mother "is in the actual possession of the real estate by way of homestead and dower."

It was prayed that the dower interest of the mother be protected and "that the property, both real estate and personal property, be divided as to value, that a master be appointed to state the account between the brothers, and on the coming in of the master's report, a decree be rendered dividing the property as the interest of the parties may appear according to the finding of the master, that the interests of the different parties be vested in them, and that the defendant, H. B. Henderson, be enjoined and restrained from interfering with the property and from handling and removing said money, and for costs and all other proper relief."

It will be observed that the complaint contained no prayer for an order to sell the property if a division in kind could not be made, a circumstance of importance in view of the subsequent developments herein recited.

The master was appointed as prayed, and testimony was heard by him, much of which related to the value of the separate tracts comprising the homestead. The testimony heard by the master was reported by a stenographer, and the master made the transcription of this testimony a part of his report. The first witness whose testimony was heard was Mrs. Henderson, the widow. Much of her testimony related to the manner in which a large sum of money had been accumulated by the brothers in the operation of a dairy on the land in question, as partners. In regard to the partition of the land she testified as follows, putting the testimony in a narrative form.

She wanted to reserve her homestead rights. She wanted the land kept intact as one tract, all of which comprised her homestead, and she did not want it divided, but wanted it kept the way it now is. If the brothers could agree, and each take his part, she would agree to that, but she did not want it sold while she was living, and she wanted to stay there as long as she lived. She wanted each of her sons to have what was right when she was gone, but she did not want it sold while she lived. On her cross-examination she expressed a willingness to have the interest which each son should have determined, but that she did not want to move off the land and did not intend to do so, and that all she wanted was not to be disturbed in her possession. In view of this testimony it cannot well be said that she consented to any order which would disturb her possession, or that she waived her right of homestead.

The master employed a surveyor, who made a survey and plat thereof, dividing the land into two tracts and a finding was made as to the owelty which should be paid to equalize the tracts in value. The master's report contained a description by metes and bounds of the two tracts according to the survey. As to the rights of the widow the master made the following finding and report.

"The Rights of Carrie M. Henderson.

"The finding is that she be left undisturbed in the residence and premises now occupied by her, and that the recommendation as to M. A. Henderson being awarded the ownership of the lands of which it is a part, is that such award be subservient to her rights of dower and homestead; that she has rights of dower and homestead in the entire 120 acres involved herein and those rights are paramount to the rights of either or both of her sons, and that the award of possession of the tracts to each of them, be subservient to her rights of dower and homestead."

Notwithstanding this report of the master, a decree was rendered February 18, 1946, which recites that the widow and both her sons were parties to the suit, and that if the land was not susceptible of a division in kind, it should be sold and the proceeds of the sale divided according to the interests of the parties. It was recited and provided that upon the sale of the property, the interest of the widow should be paid her, and the remainder of the proceeds be divided equally between the sons. It was further ordered:

"That upon the sale of said property as aforesaid and the confirmation of such sale by the court, all the right, title and interest of either and all the parties hereto, including all the dotal and homestead rights of the plaintiff, Carrie M. Henderson, in and to said property, and every part thereof, shall be divested out of them and vested in the purchaser or purchasers. Thereupon, and after execution and delivery of the commissioner's deed, without further order of this court, this court's writ of assistance do issue to the sheriff of Pulaski County, directing him to place said property into the custody of the purchaser or purchasers at such sale."

No appeal was prosecuted from this decree within the time limited by law.

The commissioner appointed to make the sale published notice thereof, but the sale was not had pursuant thereto, and no sale has yet been had. After the expiration of the time within which an appeal could have been taken, Mrs. Henderson filed a motion to vacate the decree, and set it aside. In support of this motion Mrs. Henderson offered to introduce testimony to the effect that she had employed no attorney to represent her, and that she consented to the partition only upon the condition that it be effected without disturbing her possession under her right of ownership. Appellee's attorney offered to introduce testimony that he had been authorized by Mrs. Henderson to file the partition suit.

The court declined to hear and pass upon this testimony, being of the opinion that as the decree had become final, through the failure to appeal therefrom, relief could be afforded only by complying with the provisions of § 8248, Pope's Digest, which provides that proceedings for vacating or modifying a judgment after the expiration of the term at which it was rendered, shall be by...