Kulbreth v. Drew County Timber Co.

• Court: Arkansas Supreme Court
• Writing for the Court: Hart
• Citation: Kulbreth v. Drew County Timber Co., 188 S.W. 810, 125 Ark. 291 (Ark. 1916)
• Decision Date: 25 September 1916
• Docket Number: (Nos. 149, 196.)
• Parties: KULBRETH v. DREW COUNTY TIMBER CO.

188 S.W. 810

KULBRETH v. DREW COUNTY TIMBER CO.

(Nos. 149, 196.)

Supreme Court of Arkansas.

September 25, 1916.

On Rehearing, October 16, 1916.

Appeal from Drew Chancery Court; Z. T. Wood, Chancellor.

Action by W. C. Kulbreth against the Drew County Timber Company. From the decree, plaintiff appeals; defendant also appealing from part of it. Reversed and remanded, with directions.

This action was instituted in the chancery court by W. C. Kulbreth against the Drew County Timber Company, and had for its purpose the cancellation of certain deeds to the defendant 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, Ark., consisting of 80 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 stepchildren for their interest in the homestead. Allen T. and Cora Clark agreed to convey to Russell, when they arrived at the age of 21 years, their interest in the whole 80 acres and as soon as each of them became 21 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 40 of said homestead, and in consideration therefor Russell conveyed to him his interest in the south 40 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 quitclaim 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 50 acres. This 50 acres was immediately west of the 40 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 indorsed: "Examined and approved this 17th of January, 1907. J. D. Singer, Judge."

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. Kulbreth, 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.

Henry & Harris, of Monticello, for appellant. Williamson & Williamson, of Monticello, for appellee.

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

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 insists 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 80 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 stepchildren in the homestead, and as each of them arrived at the age of 21 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 is nothing in the record to show that Mrs. Russell abandoned her homestead right or attempted to convey the same to her husband. After her marriage to Russell she permitted him to occupy her homestead with her. This could not in any event merge the life estate and remainder, and we have held that a remainderman cannot claim homestead in the land during the life and occupancy of the life tenant. Brooks v. Goodwin, 186 S. W. 67. Moreover, under our Constitution the widow and minor children share equally in the homestead until each of the minors arrive at 21 years of age. Article 9, § 6, of the Constitution of 1874. Our Constitution gives the homestead to the widow and children without restrictions. It is the settled policy in this state that laws pertaining to the homestead right of the widow and minor children shall be construed liberally in favor of the homestead claimants. The homestead is for the benefit of both the widow and children of the decedent. The widow does not lose her homestead by remarrying. Neither could her children by her second husband share in the homestead acquired from her first husband. Colum v. Thornton, 183 S. W. 205. This shows that the homestead is an indivisible estate and incapable of merger under the facts of this case as contended by counsel for the plaintiffs. Even if the homestead acquired from the first husband was capable of merger with the contingent homestead of the second husband, the right of homestead in the land of her first husband, which had already become vested in the widow by his death, would be the greater estate, and her right to the homestead as the wife of her second husband would be merged in it. For these reasons, we think the chancellor was right in holding that A. R. Russell did not have any homestead interest in the Bradley county land. This makes it necessary for us to consider whether or not the probate sale of the Bradley county land was valid.

After A. R. Russell died his widow became administratrix of his estate, and sold both the Bradley and the Drew county lands under orders of the probate court. It is contended that the order of sale did not contain a recital showing the necessity therefor, and for that reason the sale is void. The probate court under our statutes had jurisdiction to order the administratrix to sell the lands to pay the debts of decedent. The probate court is a court of superior jurisdiction, and was in its jurisdictional limits. Its judgments import absolute verity. We therefore must apply the rule that, where the record is silent with respect to any fact necessary to give the court jurisdiction, it will be presumed that the court acted within its jurisdiction. In other words, we must presume that the petition which formed the basis of the court's order and the evidence which was adduced to support the petition showed every fact that was essential to give the court jurisdiction to make the order of sale. The rule is different where the judgment of the probate court is rendered in a proceeding not in accord with its statutory jurisdiction, or according to the course of the common law, but concerning a subject-matter the jurisdiction of which is conferred upon it by special statutes. In such cases no presumption can be indulged in favor of the court's jurisdiction, but every fact essential to give the court jurisdiction and to substantially meet the requirements of the statute under which the court is proceeding must appear of record. This is the rule stated in Massey v. Doke, 50 A. L. R. 111. See, also, Flowers v. Reece, 92 Ark. 611, 123 S. W. 773; Long v. Hoffman, 103 Ark. 574, 148 S. W. 245; Hoshall v. Brown, 102 Ark. 114, 143 S. W. 1081; Green v. Holzer, 118 Ark. 533, 177 S. W. 903.

Again it is contended that the sale is void because the order of court did not describe the land to be sold. Counsel cites Mays v. Rogers, 37 Ark. 155, and Bouldin v. Jennings, 92 Ark. 299, 122 S. W. 639. We do not think the cases sustain the contention of counsel. The first case merely holds that it is error for the probate court to order more land to be sold for the payment of debts than is prayed for in the petition. The second case holds that, if...