Littell v. Jones

• Decision Date: 30 April 1892
• Citation: 19 S.W. 497,56 Ark. 139
• Parties: LITTELL v. JONES
• Court: Arkansas Supreme Court

19 S.W. 497

56 Ark. 139

LITTELL v. JONES

Supreme Court of Arkansas

April 30, 1892

APPEAL from Saint Francis Circuit Court in chancery, MATTHEW T SANDERS, Judge.

Action by John I. Jones as next friend of the minor children of Mrs E. R. Richards, deceased, against Philander Littell. The original complaint alleged that the minors were entitled to a homestead in 160 out of 240 acres of land, 80 acres of which was situated in Lee county, the remainder in St. Francis county; that the land belonged to their mother, at her death in 1879; that she derived title by inheritance from her father in 1867; that in 1869 she was married to J. E Richards, father of plaintiffs, and occupied the land as homestead until her death; that during her life she had joined with her husband in a deed of trust to Wynne, Dennis & Beck to secure an indebtedness, part of which remained unpaid; that after her death Dunn & Wills obtained a judgment against J. E. Richards, her husband, and on an execution issued thereon the land was sold and bought by defendant Littell. The prayer was that the 160 acres in St. Francis county be set apart and decreed to be the homestead of the minors; that the remainder of the land be first sold to satisfy the indebtedness to Wynne, Dennis & Beck, secured by the deed of trust; and that the purchase of defendant under the execution be canceled as to the homestead part of the land. The supplemental complaint alleged that, during the pendency of the action, all matters in controversy were settled with defendant, by his agreeing to accept the amount due on the Dunn & Wills judgment, which had been bought by him, and to relinquish all his right and title to the land to the minor children; that, by terms of that agreement, J. E. Richards was to pay $ 200 in cash to Littell, balance in six months; that, in pursuance thereof, J. E. Richards paid to W. H. Howes, attorney of record for Littell, $ 200, and took the following receipt: "Received of J. E. Richards two hundred dollars on account of the amount due Philander Littell as assignee of Dunn & Wills upon a judgment obtained in the name of said Dunn & Wills in the St. Francis circuit court against said J. E. Richards; this money being received in and upon agreement of compromise, whereby said Richards has agreed to pay off said judgment, and interest due thereon, within six months from this date. [Signed] W. H. HOWES, Atty. for Philander Littell." That the balance was tendered within six months, but was refused; and such balance was paid into court subject to final decree.

The supplemental complaint also alleged that, during the pendency of the suit, defendant became the owner of the note and mortgage held by Wynne, Dennis & Beck; that plaintiffs through their father offered to pay off the mortgage debt, but defendant refused the money; that defendant fraudulently procured one Aldridge to make a sale of the land without authority from the trustee, J. W. Wynne, and defendant purchased the land for an inadequate price, and took possession thereof. The prayer of the supplemental bill was that the terms of the settlement be enforced, and defendant divested of title under the execution sale; that his purchase under the mortgage be cancelled, and that he be compelled to account for rents and profits.

Defendant answered, stating that J. E. Richards, the father of the minor plaintiffs, had a life estate by curtesy in the lands sold under execution; that he bought the lands at the Dunn & Wills' execution sale, and thereby became the owner. He denied that he had ever entered into any compromise or settlement of the matter, pending the original bill, or that he ever stated or agreed that if the judgment was paid he would relinquish his rights to the land. He stated that he was informed that the money was paid, as stated in the complaint, to W. H. Howes, his counsellor, but that he has never accepted it; that the alleged agreement, if made, was not in writing; and he pleaded the statute of frauds. He denied that Richards ever tendered him any money for any purpose whatever; alleged that he had bought the deed of trust of Wynne, Dennis & Beck; that, after he bought the note and mortgage from Wynne, Dennis & Beck, the trustee therein, J. W. Wynne, authorized him to take such action as to the sale as he might see proper; that he (Littell) advertised the lands for sale on the 15th of June, 1885, and posted notices in four places in St. Francis and Lee counties; that the lands were publicly sold by Aldridge as agent for said trustee; and that he became the purchaser at said sale. He admitted that he was in possession of the lands, and denied generally all allegations in the complaint, made contrary to his interest.

Littell subsequently filed what he termed a supplemental bill, stating the death of his former counsellor, W. H. Howes, making his administratrix a party, and praying that she be required to pay into court the sum of $ 200 paid by plaintiffs under the alleged settlement; which amount was by her paid into court.

The court at the hearing found that the settlement of the Dunn & Wills judgment was made as alleged in plaintiff's supplemental complaint, and decreed that it be enforced; also found that the sale of the land under the Wynne, Dennis & Beck mortgage was fraudulent, and decreed that it be cancelled. Defendant has appealed.

Judgment reversed and cause remanded.

Littell pro se.

1. The husband was entitled to curtesy in the lands--an estate subject to sale under execution.

2. The land was not scheduled as a homestead before sale, nor redeemed; and, after the time for redemption expired, Littell by his deed acquired the life estate of Richards.

3. The evidence fails to show the compromise agreement was made or accepted by Littell.

4. The trustee authorized Littell to execute the trust, and do all things necessary to enforce the mortgage. A mortgagee may sell by attorney or agent.Jones on Mortg. sec. 1861.

Geo. H. Sanders for appellee.

1. The land was the home of Mrs. Richards, which on her death descended to her minor heirs. This right is superior to the curtesy estate of the husband. Acts 1852; Gould's Dig. sec. 29, ch. 68; Const. 1868; Const. 1874; 54 Ark. 9. The right of homestead existed in the children at the death of Mrs. Richards and they could not abandon or lose their rights by want of occupation or failure to schedule under sec. 3006, Mansf. Dig. See 37 Ark. 316; 26 id. 633; 41 id. 309. The effect of the constitution of 1868 was to abolish curtesy initiate. 47 Ark. 176. Under the constitutions of 1868 and 1874 the homestead was not subject to sale. 47 Ark. 445.

2. The relief prayed that the land not subject to the homestead right be first sold before resorting to the homestead is always granted in equity. 40 Ark. 102; 32 id. 438.

3. The sale under the mortgage was void for want of authority to sell. Jones on Mortgages, sec. 1862.

4. The compromise agreement, independent of the written receipt, was not within the statute of frauds. It was simply an extension of the time to redeem. 41 Ark. 268; 9 B. Mon. 452; Freeman on Ex. sec. 316. The memorandum in writing was sufficient to take the case out of the statute, considered in connection with all the circumstances, pleadings and proceedings. Pomeroy on Spec. Perf. sec. 85, and note 4; 1 McMullen, Ch. 311; 7 Pick. 301.

OPINION

HEMINGWAY, J.

It was alleged in the supplemental complaint that the sale under the deed of trust was made by a stranger to it, without the knowledge or consent of the trustee; the answer admitted that the sale was not made directly by the trustee, but averred that he authorized the appellant to make a sale whenever he saw proper and to do whatever was necessary in that behalf and that the sale was in fact made by Aldridge under the authority and as the agent of the trustee. If it were conceded that the trustee could lawfully delegate such power, it would devolve upon the party asserting the sale to show that it had been delegated to the party who made the sale. In this case the defendant alleged that the trustee had conferred his power upon...