King v. Turner

• Citation: 165 S.W. 949,112 Ark. 337
• Parties: KING v. TURNER
• Decision Date: 06 April 1914
• Court: Supreme Court of Arkansas

165 S.W. 949

112 Ark. 337

KING v. TURNER

Supreme Court of Arkansas

April 6, 1914

Appeal from Lee Chancery Court; Edward D. Robertson, Chancellor affirmed.

STATEMENT BY THE COURT.

This is a suit in chancery by Emma King against J. F. Turner to set aside the sale of the lands in controversy made to Turner under a statutory foreclosure of a deed of trust. The facts so far as are material to the issues raised by the appeal are substantially as follows:

Warren Thompson was the owner of the forty acres of land in controversy in his lifetime, and executed a deed of trust conveying the lands to W. M. Hunter, as trustee, to secure a debt he owed J. F. Turner. Warren Thompson made his will whereby he devised the land in controversy to Emma King. After Thompson's death, the executor under his will declined to act, and the defendant, Turner, was appointed administrator of his estate with the will anexed. He took charge of the land in controversy and rented it out.

While the administration was pending, Turner directed the trustee named in the deed of trust to sell the land to satisfy his debt. The land was duly advertised for sale, and was duly appraised by three disinterested householders appointed by a justice of the peace. The land was appraised at the sum of ten dollars per acre, and the appraisers stated that was its value at the time. Ten acres of it was in cultivation, and the balance was woodland. On the day fixed for the sale, the defendant, Turner, bid the sum of four hundred dollars, the amount of his debt, and that being the highest sum bid, the land was struck off to him, and he has since been in the possession of it. Several witnesses for the plaintiff testified that the land was worth twenty-five dollars per acre. The plaintiff testified that she found out, soon after Warren Thompson's death, that the debt secured by the deed of trust amounted to four hundred dollars. She said she was not present at the sale. The defendant, and several witnesses for him, testified that the land was not worth more than ten dollars per acre. The defendant testified that on the day of sale the sale was conducted by the trustee named in the deed of trust; that there was quite a number of persons present who were able to purchase the land; that some of them were colored and some of them were white persons that he does not remember who bid on the land; that the land was sold pursuant to the terms of the deed of trust at a public sale on the 11th day of May, 1907, and that he became the purchaser at the sale made by the trustee; that there was at that time litigation pending between Emma King and the heirs of Warren Thompson in regard to the probate of the will; that it was not known at the time whether Emma King would take under the will or whether the lands would descend to the heirs of Warren Thompson; that Emma King told him to go ahead and have the land sold, and that he told her that she had two years in which to redeem it. He further testified as follows: "She asked me to buy the land and said this: 'I reckon this lawsuit will be settled up so I can redeem the land in two years.' She told me that." He further stated that Emma King was present when he bought the land, but does not remember whether her husband was there or not, but that her husband had asked him to buy the land at the sale.

Other facts will be referred to in the opinion. The chancellor found that the plaintiff was not entitled to recover in the action and entered a decree dismissing her complaint for want of equity. The plaintiff has appealed.

Decree affirmed.

J. F. Wills and C. L. O'Daniel, for appellant.

This court adheres to the wholesome rule that one who occupies a trust relationship to another will not be permitted to take advantage of that relation. Appellee, when he became administrator of Warren Thompson's estate, placed himself in such relation of trust, and was, therefore, forbidden to purchase any part of the estate at a sale thereof. 27 Ark. 637; 54 Ark. 627; 55 Ark. 91; 61 Ark. 575; 64 Ark. 438; 85 Ark. 140; 95 Ark. 434; 33 Ark. 587.

Roleson & McCulloch, for appellee.

1. The decree should be affirmed, because the devisee under the will, who was of age, requested appellee to purchase the land, was present at the sale, stood by and saw him purchase it and made no objection. 1 Lewin on Trusts, 662, subdiv. 14; Id. 662, subdiv. 12; 10 Cyc. 329; Id. 770; 84 Ark. 557; 78 Ark. 111.

2. Appellee had the right to buy. His relationship to the Thompson estate did not place him in such relation of trust toward the beneficiaries under the will as would bring him under the rule prohibiting a trustee from purchasing at his own sale. 79 N.C. 426; 18 Cyc. 771; Id. 328; 88 N.W. 433; 30 So. 784; 4 So. 720; 57 S.W. 1078-1080.

OPINION

HART, J., (after stating the facts).

When the defendant, Turner, was appointed administrator with will annexed of the estate of Warren Thompson, deceased, he took possession of the forty acres of land in controversy and rented it out. While the administration was pending he directed the trustee named in the deed of trust executed by Warren Thompson to sell the land for the purpose of satisfying the debt secured by the deed of trust. Pursuant to this direction, the trustee sold the land under the power contained in the deed of trust, and the defendant, Turner became the purchaser at the sale. When Turner took possession of the land as administrator, he...