Kulbeth v. Drew County Timber Company
| Decision Date | 25 September 1916 |
| Docket Number | 149,196 |
| Citation | 188 S.W. 810,125 Ark. 291 |
| Parties | KULBETH v. DREW COUNTY TIMBER COMPANY |
| Court | Arkansas Supreme Court |
Appeal from Drew Chancery Count; Zachariah T. Wood, Chancellor reversed in part; affirmed in part.
STATEMENT BY THE COURT.
This action was instituted in the chancery court by W. C. Kulbeth against the Drew County Timber Company and had for its purpose the cancellation of certain deeds to the defendants as a cloud upon the plaintiff's title. The material facts are as follows:
John Clark, Sr., died in 1890, leaving surviving him his widow Laura J. Clark and three minor children, viz.: John Clark Allen T. Clark and Cora Clark. At the time of his death he had a homestead in Bradley County, Arkansas, consisting of eighty acres of land. About two years after his death, his widow married A. R. Russell. After their marriage, she and her children by her first marriage and her second husband continued to occupy her homestead. A. R. Russell made a contract with his step-children for their interest in the homestead. Allen T. and Cora Clark agreed to convey to Russell, when they arrived at the age of twenty-one years their interest in the whole eighty acres and as soon as each of them became twenty-one a deed was executed to Russell in conformity with the agreement and he paid a money consideration for the land. John Clark conveyed to Russell his interest in the north forty of said homestead, and in consideration therefor, Russell conveyed to him his interest in the south forty of said homestead. Russell only filed for record the deed from Allen T. Clark. Russell made his agreements, concerning the homestead, with his stepchildren in 1894 and the deeds were executed at various times from 1898 to 1900. The defendant procured quit claim deeds from John and Cora Clark and filed them for record respectively on September 30, 1908, and October 5, 1915. In 1894 A. R. Russell while he was living with his family on his wife's homestead in Bradley County, entered from the State a quarter section of land adjoining it and after complying with the statutes in regard to residence on the land and improving the same, in 1898 received from the State a donation deed therefor. After receiving his donation deed, Russell sold all of it except fifty acres. This fifty acres was immediately west of the forty acres in Bradley County on which he and his family resided. There was cleared land on both tracts and it was used as one farm by Russell until his death in 1905. These two tracts of land were all that Russell had any interest in at the date of his death. His widow became administratrix of his estate and in July, 1906, procured an order of the probate court to sell the land belonging to his estate. The land was sold under orders of the probate court and W. M. Miller and H. S. Daniel became the purchasers at the sale. Mrs. Russell executed a deed to them in the ordinary form of a warranty deed, reciting that Mrs. L. J. Russell, administratrix of the estate of A. R. Russell, deceased, was the grantor in the deed. The deed is endorsed
At the January term, 1907, of the probate court, the deed of the administratrix to Miller and Daniel was by the court examined and approved and an order entered of record to that effect. On September 28, 1908, Miller and Daniel conveyed the lands to the defendant, Drew County Timber Company. On June 15, 1909, the chancery court of Drew County entered a decree confirming the title of the lands in Drew County in the defendant and on August 18, 1909, a similar decree was entered in the chancery court of Bradley County in regard to the lands in that County. Both of these confirmation suits were had under the statutes and no one was made a defendant thereto. Neither plaintiff nor his vendors were aware of the suit. In November, 1912, Mrs. Laura J. Russell died. In October, 1914, the heirs of A. R. Russell, deceased, executed deeds to the plaintiff, W. C. Kulbeth, and he commenced this suit on March 24, 1915, against the Drew County Timber Company.
The chancellor was of the opinion that the lands embraced in this suit did not constitute the homestead of A. R. Russell and that the sale of them after his death by the administratrix of his estate under orders of the probate court was valid. A decree was accordingly entered of record reciting these facts and dismissing the complaint of the plaintiff for want of equity. The case is here on appeal.
Decree reversed and cause remanded. Motion for rehearing denied.
Henry & Harris, for appellant.
1. The court erred in holding, as a matter of law, that neither the land in Bradley nor in Drew Counties constituted the homestead of Alva R. Russell. The tracts adjoined, constituted one farm, parts of both were in cultivation by Russell. Conceding that his wife had a homestead right in the Bradley County forty as the widow of John Clark, Sr., the fact remains that Russell at the time of his death, had already acquired the title of the heirs of Clark, and was occupying and claiming a homestead in both tracts. The homestead right of Laura J. Russell was merged into her greater homestead right as the wife of Russell. 16 Cyc. 665-6. Adjoining tracts owned separately by man and wife, one of which is occupied as a home and both not exceeding the statutory limit, comprises the homestead. 69 Miss. 67.
If Alva Russell had a homestead right, the probate sale is void, 79 Ark. 408; and limitations do not run until the youngest child is of age. 83 Ark. 196; 87 Id. 428; 92 Id. 143. Kirby's Digest, § 5060 was not plead by defendant.
2. The probate sale was void for want of jurisdiction in the court. 59 Ark. 483; 54 Id. 627; Kirby's Digest, § 3793; 86 Ark. 368; 89 Id. 284; 106 Id. 563; 115 Ark. 385; 116 Ark. 361.
Kirby's Digest, §§ 3793, 189, 190-1, etc., provide for a proceeding in rem and the lands must be described. 37 Ark. 155. No order of sale of the lands was made and Miller and Daniel acquired no title. 92 Ark. 299; 116 Ark. 361. There were no debts against the estate of Russell; the lands were not specified; no appraisement was filed; no advertisement shown nor the time for sale and there was no report. This is not a collateral but direct attack upon a judgment.
3. The confirmation decrees are ineffective as to appellant. No defendants were named; the suits were ex parte. 96 Ark. 540; 83 Id. 154; 75 Id. 427. Appellee knew of the claims of the Russell heirs and failed to make them parties. 117 Ark. 418; 99 Ark. 446. The heirs were minors and the statute did not run against them.
Williamson & Williamson, for appellee.
1. Neither the land in Bradley County nor Drew County ever became the homestead of A. R. Russell; but if the Drew County land ever was his homestead it was abandoned many years before his death. 57 Ark. 179; 78 Id. 479; 84 Id. 359; 89 Id. 506; 76 Id. 575; 68 Id. 76; 101 Id. 101; 104 Id. 316; 28 Id. 493; 60 Id. 262; 116 Id. 106.
The Bradley County land never became Russell's homestead because he never had the right of occupancy. Kirby's Digest, § 763; 86 Ark. 398; 44 Id. 153; 145 U.S. 492; 12 S.Ct. 892; 21 Cyc. 503-e. The doctrine of merger is not favored. 16 Cyc. 665; 10 R. C. L. 666. It is now practically extinct.
An inchoate right of dower or homestead is not an estate and there could be no merger. 98 Ark. 124; Am. Cas. 1912 D. 776; 61 Ark. 29; 53 Id. 400. A wife is entitled to a homestead in her separate estate. 54 Ark. 9; 21 Cyc. 507. A living homestead claimant must have actual residence on the land, 28 Ark. 493; 116 Id. 103. But as to the vested estate of homestead the widow and minors do not have to occupy the homestead at all. 183 S.W. 205. There can not be two vested homestead rights in the same land at the same time. 73 Ark. 268.
2. The defendant plead the statute of limitations.
3. The probate sale was not void. This was a collateral attack. 121 Ark. 474; 118 Ark. 449; 92 Ark. 611. The records of the probate court are not before this court; the presumption of regularity is against the appellant. 103 Ark. 574; 92 Id. 616. The judgment of the probate court settled the necessity for the sale and it cannot be collaterally attacked. 102 Ark. 114; 103 Id. 574; 92 Id. 611; 122 Ark. 590. Every presumption is in favor of the regularity of the proceedings. 90 Ark. 167; 92 Id. 616; 78 Id. 481; 105 Id. 265; 118 Ark. 533; 75 Ark. 176, 180-1.
4. There was no proof of title in appellant. 38 Ark. 181, 278. Unrecorded deeds do not prove title. 40 Id. 238.
5. Plaintiff and the Russell heirs are barred by laches. 87 Ark. 233; 55 Id. 95; etc. Also by the five years statute, 76 Ark. 150; 46 Id. 37; 39 Id. 158.
OPINIONHART, J. (after stating the facts).
The chancellor held that A. R. Russell did not have any homestead right either in the land situated in Bradley County or that situated in Drew County.
Counsel for the plaintiff earnestly insist that the conclusions of law reached by the chancellor are erroneous. Under the facts presented by the record and in view of the conclusion we have reached, it will be necessary to discuss the Bradley County land and the Drew County land separately. It will be remembered that John Clark, Sr., died owning a homestead of eighty acres in Bradley County. He left surviving him his widow and three minor children. In about two years after his death his wife married A. R. Russell and she and her husband and her children by her first husband continued to reside on the homestead. Russell purchased the interest of his step-children in the homestead and as each of them arrived at the age of twenty-one years, a deed was executed to him therefor. Thus it will be seen that Mrs. Russell owned a life estate in the land and her husband the remainder. There...
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