Holloway v. Eagle

• Decision Date: 08 July 1918
• Docket Number: 103
• Citation: 205 S.W. 113,135 Ark. 206
• Parties: HOLLOWAY v. EAGLE
• Court: Arkansas Supreme Court

205 S.W. 113

135 Ark. 206

HOLLOWAY v. EAGLE

No. 103

Supreme Court of Arkansas

July 8, 1918

Appeal from Lonoke Chancery Court; J. E. Martineau, Chancellor affirmed.

Decree affirmed.

Rhoton & Helm and Carmichael, Brooks & Rector, for appellants.

1. W H. Eagle was a trustee and Joe P. Eagle should be treated as a trustee for plaintiffs. An administrator can not buy at his own sale, directly or indirectly. 87 Ark. 142; 85 Id. 140; 95 Id. 434. Nor at an execution sale. 75 Id. 184. Nor at a commissioner's sale tax sale, or any other public or private sale without creating a trust. 102 Ark. 65; 55 Id. 85. There was no confirmation of the sale. 105 Id. 261; 23 Id. 41; 10 Oh. St. 557. Plaintiffs were not barred by limitation. Kirby's Digest, § 5056-7, 5060; 55 Ark. 85; 87 Id. 238. Nor by laches as to at least infants and married women. W. H. and Joe P. Eagle were both trustees for plaintiffs. 2 Perry on Trusts (6 ed.) §§ 860-863; 39 Cyc. 600.

2. The judgments rendered upon which the account was based, were of no validity. A man can not sue himself; he can not be both plaintiff and defendant as here. 12 Am. Dec. 684; 11 Id. 556; 55 Id. 142; 17 Id. 569. The master should have started the account with the mortgages and not with the judgments with interest and costs added.

3. The beneficiaries should not have been charged with permanent improvements. 160 acres was a homestead. Nor should they be charged with a mule, salary of overseer, cook, personal services of a trustee, etc. 68 Ark. 534; 23 Id. 622; 101 Id. 18; 78 Id. 111; 96 Id. 281; 84 Id. 160; 52 Id. 381; 49 L. R. A. (N. S.) 125, and note; 97 Ark. 397; 18 Id. 34.

4. It was error to charge 10% interest and for all classes of losses, as shown by the master's report, such as quitclaim deeds, surveying lands, pumps, houses, fences, salary manager, cook, horse and feed, mule killed, building bridge, cutting out road, etc. Appellants also specifically excepted to the finding in favor of W. H. Eagle as to the judgment in favor of W. H. Eagle & Son, Nov. 21, 1894, for $ 1,508.08 and 10% interest and to the judgment of $ 3,277.07 and 10% interest.

5. A beneficiary, especially in infant, can not be improved out of his estate. 95 Ark. 168; 115 Id. 572; 2 Perry Trusts (6 ed.), §§ 526, 546, 606; 42 Ark. 120.

The improvements must be in good faith. 14 R. C. L. 22, § 11.

6. Appellants have the right to follow the funds as well as the property itself in the same suit. 96 Ark. 281.

Thos. C. Trimble, Jr., and Ross Williams, for appellees.

1. The mortgage sales were not void. They were made by the court through a commissioner. The lands brought their fair value. The foreclosure decrees can not be attacked collaterally. All the Holloway heirs were parties to the foreclosure proceedings. The sales were duly confirmed and approved. 23 Ark. 41; 113 Id. 341. All irregularities were cured by confirmation. 74 Ark. 475.

2. On collateral attack all defects amendable will be considered as amended. 56 Ark. 191; 32 Id. 278; Ib. 407; 34 Id. 682.

3. The court had jurisdiction and the decrees were not void, but merely voidable and not subject to collateral attack. 105 Ark. 5. No fraud was shown. 90 Id. 167. Confirmation cured all defects and irregularities. 65 Ark. 152; 145 U.S. 349; Rorer on Jud. Sales, § 132. See also 124 Ark. 219.

4. There are exceptions to the rule that the administrator can not be interested in his own sale. 33 Ark. 585; 18 Cyc. 770. The sale was not void but voidable only. Only void sales can be attacked collaterally. 55 Ark. 85; 87 Id. 142; 56 Id. 187; 105 Id. 5. See also 117 Ark. 544; 102 Id. 68. All the heirs were parties to the suit and the infant properly represented by guardian. No prejudice is shown. 42 Id. 22; 44 Id. 236. The judgment was not void. 49 Ark. 398.

5. All the appellants are barred by limitation and laches. 55 Ark. 93; Kirby's Digest, § 6248; 113 Ark. 332; 103 Id. 67. The married women are barred. Kirby's Digest, § 5060; 46 Ark. 37; 47 Id. 562; 61 Id. 541. The sales were judicial sales. 111 Ark. 164. They are barred by the seven-year statute and nonclaim. K. & C. Dig., § 110. The statute applies to trustees. 58 Ark. 90; 47 Id. 468.

6. Improvements were properly allowed. 70 Ark. 488; 95 Id. 167; K. & C. Dig., § 2976. There are no reversible errors in the master's account.

OPINION

WOOD, J.

This is an action brought by the heirs of E. H. Holloway against Joe P. Eagle and the Union Trust Company, as executors of the last will of W. H. Eagle, deceased, and Joe P. Eagle. E. H. Holloway died August 8, 1893 or 1894; his heirs were A. J. Wade, John and C. V. Holloway, Edna, Elvin and Shelby Miller, who were the children of Sarah Miller, deceased, Mary, Tom and Roy Mason, who were the children of Allie Mason, deceased, Mrs. M. E. Naylor and LeMay Holloway Lewis. Sarah Miller and Allie Mason were the daughters of E. H. Holloway.

Action was first brought by C. V. Holloway, who was afterward joined by the other heirs, as parties plaintiff. They alleged in substance that E. H. Holloway died in possession of certain lands (describing them); that a suit was brought by W. H. Eagle & Son (a firm composed of W. H. Eagle and Joe P. Eagle), against W. H. Eagle, as administrator of the estate of E. H. Holloway; that the land described in the complaint was sold to W. H. Eagle & Son; that W. H. Eagle, a member of the firm who purchased the land, was appointed administrator of the estate of E. H. Holloway; that he was also trustee at the time of the sale, and at the time the conveyance was made by the commissioner under such sale; that the estate of W. H. Eagle, deceased, and Joe P. Eagle should be held to account for the rents and profits since the date of the sale, May 23, 1895, and they prayed that a master be appointed to state an account of this, and if it be found that the land was subject to an encumbrance due W. H. Eagle & Son, that they be allowed to redeem same.

The answer denied specifically all the allegations of the complaint and set up as a bar all the statutes of limitation and the statute of nonclaim and pleaded laches. After a great deal of testimony had been taken, the chancellor appointed L. P. Biggs, master, who was satisfactory to both parties, and directed him to examine the testimony already taken and to take further testimony; to ascertain the amount of the original indebtedness due by E. H. Holloway to W. H. Eagle & Son, the amount of rents collected, taxes paid and interest charged, and then report to the court. After the testimony was taken and the report of the master filed, many exceptions to the report of the master were filed by plaintiffs, and the court, after considering the entire record in the case, dismissed the complaint for want of equity, as to all the plaintiffs, except C. V. Holloway.

The court found that the defendant, Joe P. Eagle, was guilty of no actual fraud, but held him accountable as trustee, because he had acquired title to the lands through a purchase by W. H. Eagle & Son, and that such purchase of the lands belonging to the estate of E. H. Holloway, by its administrator, W. H. Eagle, rendered the sale voidable.

The court affirmed the finding of the master, that Joe P. Eagle was due the estate of E. H. Holloway the sum of $ 4,960.53, and that the plaintiff, C. V. Holloway, was entitled to one-ninth interest in said sum, towit, $ 551.17, with interest thereon from December 31, 1916, until paid, and rendered a decree in favor of C. V. Holloway for such sum.

From this decree C. V. Holloway prosecutes this appeal. The other heirs also prosecute the appeal from the decree dismissing their complaint for want of equity, and Joe P. Eagle cross-appealed in this court.

E. H. Holloway was indebted to W. H. Eagle & Son, and to secure such indebtedness he mortgaged to them all his personal property and real estate in Lonoke County; the mortgage covered the real estate lying north and south of what is called in the record "Bayou Meta." The lands south of Bayou Meta were subject to a prior mortgage executed by Holloway to the Arkansas Loan & Trust Company. Prior to the death of Holloway the trust company had brought suit to foreclose its mortgage; that suit was contested and found its way to the Supreme Court. After Holloway's death the case was revived in the Supreme Court in the name of W. H. Eagle, as administrator of the estate of E. H. Holloway, deceased, and the heirs of E. H. Holloway. A receiver was also appointed in this suit. The decree of the lower court was affirmed by the Supreme Court.

While suit was pending in the Supreme Court, W. H. Eagle & Son filed suit to foreclose their mortgage, and made W. H. Eagle administrator of the Holloway heirs, and the receiver appointed in the suit of the trust company, parties to that suit.

A decree of foreclosure was rendered, but no procedure was had against the lands that lay south of the bayou, they being covered by the mortgage of the trust company. The decree was rendered against the land north of the bayou and the clerk of the court was appointed commissioner to sell those lands. A decree of foreclosure was also rendered in the suit of the trust company against the lands south of Bayou Meta, and Max Frolich was appointed commissioner to make the sale of these lands. As shown in his report, "W. H. Eagle and Joe P Eagle, composing the firm of W. H. Eagle & Son, being the highest and best bidders, became the purchaser at that sale." A report of this sale was made to the court on November 19, 1895, and a deed in pursuance to that sale was of the same date. This deed was made to J. P. Eagle, and the acknowledgment of the deed contains this recital: "On this day, Max Frolich, appointed to execute the decree rendered in this case, produces to the court here his...