Johnson v. Taylor

• Citation: 215 S.W. 162,140 Ark. 100
• Decision Date: 06 October 1919
• Docket Number: 125
• Parties: JOHNSON v. TAYLOR
• Court: Supreme Court of Arkansas

215 S.W. 162

140 Ark. 100

JOHNSON v. TAYLOR

No. 125

Supreme Court of Arkansas

October 6, 1919

Appeal from Columbia Chancery Court; James M. Barker, Chancellor affirmed.

Decree affirmed.

Stevens & Stevens, for appellant.

1. The sale of the land by the administrator of R. O. Taylor was a valid sale and vested the title in the vendees on its confirmation. The widow had conveyed her homestead rights. The minor children were with their mother in another State and the lands were subject to the payment of debts of the deceased R. O. Taylor, and the sale was valid. Kirby's Digest, § 3898; art. 9, § 3, Const. 1874; 21 Cyc 458. Under the facts of this case the lands were not a homestead. 26 Am. St. 319; 29 So. 777; 21 Cyc. 467. The proof shows that Frank and Haston Taylor, on the death of their father, were not a part of the family and had not been for fully fifteen or twenty years. 24 Ark. 158; Kirby's Digest, §§ 3882-3, 3898; 71 Ark. 206.

2. The sale was void and appellees are barred. 53 Ark. 410; 79 Id. 411; 54 Id. 642; 76 Id. 150.

3. Appellees are barred by laches and are estopped. 55 Ark. 94; 33 Id. 468-9; Bigelow on Estoppel (6 ed.) 608.

Gross negligence will estop. 97 Ark. 43; 89 Id. 349.

Appellees are barred by limitation. 54 Ark. 87; 87 Id. 237; 55 Id. 85; 60 Id. 50.

4. The place had no rental value but for Johnson's improvements and appellees are barred from recovering rents. 33 Ark. 495; 46 Id. 109; 42 Id. 423; 55 Id 369.

The lower court erred in decreeing title in appellees and in the money judgment against appellant, and the decree should be reversed and dismissed as to the children of R. O. Taylor and the two oldest children of Mrs. Jane Thomas, deceased.

McKay & Smith, for appellees.

1. The appeal should be dismissed, as it is shown that appellant has settled with all except two of the original heirs and a portion of the grandchildren who are heirs of Mrs. Jane Thomas, deceased. The decree, not abstracted by appellant shows that appellant is now the owner of seven-tenths interest in the lands, leaving a three-tenths interest that has not yet been settled. Appellant's act in settling this judgment with the principal part of the appellees is inconsistent with his right to appeal. If this judgment is reversed, it must be as to all the appellees. He has acquiesced in the judgment and can not appeal. 3 C. J., pp. 665, 675-6-7; 113 Ark. 25; 132 Id. 69; 106 Id. 292; 83 Id. 306; 53 Id. 514.

2. The absence of the minor children at the time of their father's death does not deprive them of their homestead rights. Art. 9, § 6, Const. 1874; 29 Ark. 280-293.

The last domicile of the deceased father is the minor children's domicile and can not be changed until majority. 116 Ark. 361; 16 Id. 377; 72 Id. 299. The minors could not abandon their homestead right if the widow could. 125 Ark. 291; 115 Id. 359; 113 Id. 135; 123 Id. 389; 126 Id. 1.

3. Appellees are not barred by limitation. 53 Ark. 400. The seven years' statute applies, and not the five years', as to judicial sales. 115 Ark. 359. The statute only runs from the confirmation of the sale, not from its date. 126 Ark. 86; 108 Id. 370; 69 Id. 539; 61 Id. 80; 82 Id. 55; 32 Id. 181; 76 Id. 146; 69 Id. 540. The sale here and the confirmation are absolutely void, because they were not made in compliance with our statutes. Kirby & Castle's Digest, §§ 4194-196; 106 Ark. 563.

4. Appellant is not entitled to recover for improvements, as he made them after the sale but before the confirmation thereof, and he had no color of title even, nor did he believe himself the owner. 47 Ark. 62; Ib. 528; 48 Id. 183; 93 Id. 93; 102 Id. 181. All he had was a certificate of purchase; no title nor color thereof. 67 Ark. 184; 72 Id. 601; 26 Id. 48; 76 Id. 152; 126 Id. 86; 105 Id. 261; 69 Id. 539. He was not entitled to possession until he received his deed duly confirmed and entitled to no rents nor improvements. 108 Ark. 370; 47 Id. 528; 67 Id. 184; 92 Id. 173.

5. Appellees are not estopped or barred by laches. 131 Ark. 77; 70 Id. 371; 67 Id. 320; 103 Id. 251.

OPINION

HUMPHREYS, J.

This suit was commenced on September 13, 1916, as an ejectment suit by appellees against appellant in the Columbia Circuit Court to recover certain lands alleged to have comprised the homestead of their father, R. O. Taylor, at the time of his death, and for damages on account of rents and timber cut during the detention thereof by appellant. The complaint alleged ownership in appellees of the land by inheritance from their father, and that appellant was in to unlawful possession thereof.

Appellant answered, admitting that appellees were the only heirs of R. O. Taylor, deceased, but that their title was extinguished under a probate sale of said lands for the payment of valid claims against the estate of said R. O Taylor, deceased; that he and his brother purchased the lands at said probate sale and received certificates of purchase for the respective parts purchased by each; that his brother assigned his certificate of purchase to the appellant; that the sale was confirmed on the 22d day of November, 1913, at which time, he received a deed to said land; that he went into possession of the land under the certificates of purchase aforesaid and made valuable improvements thereon, setting them out in detail, both as to kind and value; that he paid the taxes thereon in the sum of $ 81.16; that he paid the administrator, on account of the purchase, $ 415.99, which was used in liquidating the indebtedness of said estate; that said lands were subject to sale for the indebtedness of the estate, even though the homestead of the deceased at the time of his death, for the alleged reason that the widow had conveyed her homestead right, and that all children entitled to enjoy the homestead were of full age at the time said real estate was ordered sold. As further defenses, appellant pleaded limitations, estoppel and laches.

On motion of appellant contained in the answer, the cause was transferred to the chancery court of Columbia County. Appellees filed a reply, denying all the material allegations relating to new matter in the answer, with the additional request that the deed received under and by virtue of the probate sale be canceled as a cloud on their title.

The cause was heard upon the pleadings and exhibits thereto, depositions of witnesses and an agreed statement of facts marked "1" and "2," from which the court found that appellees were owners of said land by virtue of inheritance from R. O. Taylor, deceased, but that H. T. Taylor, an appellee, had conveyed his interest therein to appellant; that the other appellees owned an undivided nine-tenths in said real estate; that they were entitled to a rental of $ 1,578.53, covering the period from the institution of the suit until the date of the decree and for three years prior to the institution of said suit, and $ 167.48 for timber cut and removed from said land by appellant. As an off-set to these two amounts, the court found that appellant was entitled to $ 81.16 paid for taxes, and $ 928.90 for improvements, leaving a balance of $ 635.96 due appellees on account of detention of the lands by appellant; that appellant was entitled to be subrogated to the right of the creditor's of the estate of R. O. Taylor, deceased, to the amount of $ 415 and interest, but that the amount appellant received as rents on the place from the time he took possession until September, 1913, was a full and complete off-set against said last named amount. A decree was rendered in accordance with the findings, from which an appeal has been duly prosecuted to this court. During the pendency of this appeal, appellant has settled with and purchased the interest of Mrs. Jean Taylor, Mrs. Mary Lee Taylor, Mrs. Ida Denman, Mrs. Carrie Sweet, Haston Taylor and Frank Taylor. Based upon appellant's purchase and settlement of said interests during the pendency of this appeal, the other appellees filed a motion to dismiss the appeal. This court dismissed the appeal as to the interest of the appellees purchased by appellant, but overruled the motion as to the appellees whose interests were not purchased.

The following facts are definitely established by the record: R. O. Taylor, the father of appellees, together with his wife, Nancy Taylor, occupied the lands in controversy as their homestead when he died. Years before he married Nancy Taylor, he had been divorced from the mother of Haston and Frank Taylor, who took them in infancy to another State, where they remained until after R. O. Taylor's death. They were both minors at the time of their father's death. Haston became of age December 28, 1910, and Frank in May, 1913. They had never actually lived with their father on the land in question. The older children continued to reside near, and were living near him when he died. Mrs. Nancy Taylor abandoned her homestead right on January 4, 1910, by conveying same to H. T. Taylor.

H. T Taylor conveyed his interest to appellant on the 9th day of December, 1913. W. M. Johnson, father of appellant, was appointed administrator of the estate of R. O. Taylor, deceased, on January 7, 1910. He obtained an order, on May 11, 1910, from the probate court to sell the property in question for the purpose of paying the indebtedness of the estate. Pursuant to the order, the land was sold on the 10th day of June, 1910, one parcel being purchased by Henry Johnson and the other by appellant. The land sold for $ 415, which amounted, including interest, at the date of the judgment to $ 584.97. Henry Johnson afterwards assigned his certificate of purchase, for the parcel bought by him, to appellant. Appellant went into possession under his certificates of purchase and made valuable improvements...