McDaniel v. Conlan

• Decision Date: 17 June 1918
• Docket Number: 47
• Citation: 204 S.W. 850,134 Ark. 519
• Parties: MCDANIEL v. CONLAN
• Court: Arkansas Supreme Court

204 S.W. 850

134 Ark. 519

MCDANIEL v. CONLAN

No. 47

Supreme Court of Arkansas

June 17, 1918

Appeal from Lee Chancery Court; E. D. Robertson, Chancellor reversed in part, affirmed in part.

Decree affirmed except as to amount of interest allowed Mrs. Conlan reversed, and cause remanded.

J. W Morrow, for appellant.

1. The probate court had no authority to make the order vesting the title to real estate in the appellee, Effie Conlan. 79 Ark 112; 70 Id. 25; 92 Id. 143. No compliance was had with Kirby's Digest, §§ 2720-1-2.

2. Under stipulation of counsel and depositions no service, personal or constructive, was had on appellant. K. & C. Dig., § 5153. She was a resident of Lee County.

3. The widow takes subject to the deed of trust. Mrs. Conlan joined in the deed of trust to Goodman Bros. and released all homestead and dower rights. On the death of her husband she had only a life estate subject to the Goodman trust deed, her husband's interest was only an equity of redemption. The widow had no greater rights than her husband, and she assumed the burden of debt on his death. As her husband had only an equity of redemption, she takes only that equity and so must contribute to the payment of the mortgage debt. 121 Ark. 74. She was not entitled to subrogation to the Goodman debt. 55 Ark. 225; Thompson on H. & Ex. 549, 583; 121 Ark. 64; 68 Id. 449; 199 S.W. 83; 3 Pom. Eq. Jur. (3 ed.), § 1223; 2 Jones on Mort. (4 ed.), § 1067; 1 Scribner on Dower (2 ed.), 537-9; 16 Cyc. 634; 101 Ark. 296; 81 Id. 152; 87 Id. 61; 102 Id. 312.

4. The land was not the homestead of Jas. G. Conlan. He only occupied it temporarily--it was not his home. Mrs. Conlan was a non-resident. It was not her homestead. If it was her husband's homestead, she abandoned it. 101 Ark. 103; 74 Id. 88; 76 Id. 575; 101 Id. 296; 107 Id. 535, etc. Only residents of Arkansas can claim homestead. 34 Ark. 111; 24 Id. 152; 53 Id. 182; 52 Id. 353; 21 Cyc. 470.

5. Subrogation being equitable in its nature, can not be inferred. Creditors whose rights are sought are necessary parties. 37 Cyc. 388; 56 Ark. 574; 76 Id. 171; 56 Id. 563.

6. On the death of Conlan, all accrued rents should have been applied to the mortgage debt. 67 Ark. 239; 72 Id. 272; 83 Id. 416; 14 Cyc. 113; 1 Taylor on Land & T. (9 ed.), § 390. It was the widow's duty to contribute to the payment of the trust debt and she was not entitled to subrogation. She joined in the trust deed and released her dower and homestead. 121 Ark. 64; 64 Id. 499; 16 Cyc. 634; 106 Ark. 207; 3 Id. 368; 74 Id. 138; 37 Cyc. 388.

7. Goodman Bros. were necessary parties. 56 Ark. 574; Ib. 563; 76 Id. 171; 16 Cyc. 632.

8. A widow may abandon her homestead. 48 Ark. 230; 51 Id. 432.

9. Mrs. Conlan's half interest was more than eighty acres and without the limits of a city and the burden was on her to show it not to be worth more than $ 2,500, which she did not do. 67 Ark. 22; 70 Id. 69.

Daggett & Daggett, for appellee.

1. All controversy as to the facts is settled by the findings of the chancellor. There is ample evidence to sustain his findings.

2. The personal property of James G. Conlan was absorbed by the expenses of his last illness and burial.

3. The lands were the homestead of James G. Conlan. Mrs. Conlan paid the debts and was subrogated to the rights and lien of Goodman Bros., and the chancellor so found. 80 Ark. 37; 53 Id. 545; 53 Id. 545; 42 Id. 503, 516.

4. The proof is clear that the land was the husband's homestead, and on his death it became the widow's. If it exceeded eighty acres and was worth more than $ 2,500, it was appellant's duty to have the probate court measure and set off her dower and homestead, and until this was done Mrs. Conlan was entitled to possession and rents. Kirby's Digest, §§ 2703-4; 79 Ark. 408; 106 Id. 9; 113 Id. 134; 115 Id. 358.

5. The trustee under the Goodman mortgage was not a necessary party. The mortgage was paid off and satisfied, and Mrs. Conlan is not trying to foreclose that lien. Subrogation is a creature of equity. The law casts upon the heir the duty to pay encumbrances and not upon the widow. The land was a homestead. Mrs. Conlan has held possession since her husband's death and is entitled to the rents. She does not have to reside upon the land, but she has never abandoned it. The decree is just and correct.

OPINION

WOOD, J.

This suit was instituted by the appellant against the appellees to quiet the title to and to recover the possession of certain lands in Lee County, and judgment was also asked for the rents and profits during the time that the appellant alleged that she had been deprived of the use of the lands.

The facts are substantially as follows: James Conlan owned the lands in controversy. He died intestate and in possession of the same in 1885. Surviving him was his widow, Mrs. O. V. Conlan, and appellant, and James G. Conlan, his children. On March 5, 1907, Mrs. O. V. Conlan, the appellant, and her husband, A. J. McDaniel, James G. Conlan and his wife, Effie N. Conlan, executed a deed of trust to secure Goodman Bros. for notes of that date and amounts due as follows: March 25, 1908, $ 825; March 25, 1909, $ 770; March 25, 1910, $ 715; March 25, 1911, $ 660; March 25, 1912, $ 605. The mortgage was signed by Mrs. Effie N. Conlan, but the notes were not. James G. Conlan died intestate and without issue in 1908, and Mrs. O. V. Conlan died intestate in 1910. Prior to the death of her brother, the appellant conveyed her undivided one-half interest in the lands in controversy to one Granger, who conveyed the same to J. M. Baker. James G. Conlan prior to his death paid the first note to Goodman Bros. After the death of James G. Conlan his widow, Mrs. Effie Conlan, took possession of an undivided one-half interest of which her husband died seized. She used the rents therefrom and other funds of her own not derived from these lands to pay off the remaining notes above mentioned secured by the deed of trust to Goodman Bros.

In her answer, which she made a cross-complaint. Mrs. Effie Conlan set up the payment of these notes and prayed that her dower and homestead interests in the lands in controversy be set apart to her, and that she be subrogated to the rights of Goodman Bros. and J. M. Baker in the notes, which she paid, which with interest amounted in the aggregate to $ 3,954.92, and that a lien be declared in her favor for that sum on the lands in controversy, and that unless the sum be paid that the lands be sold, etc.

The appellee, Mrs. Effie Conlan, did not allege in her cross-complaint that the land in controversy was the homestead of her husband, James G. Conlan, but she prayed that her homestead interest be set apart to her and testimony was taken without objection on that question. The trial court treated that as one of the issues in the case, and found that the undivided interest of James G. Conlan in the lands in controversy was his homestead at the date of his death, he being temporarily absent therefrom, but with the intention to return. The court found that Mrs. Effie Conlan was entitled to the rents and profits of the lands in controversy from the time of her husband's death. The court also found that Mrs. Effie Conlan had paid off all the notes under the Goodman Bros. deed of trust, except the first. The court entered a decree vesting the title in fee to a one-half interest in the lands in controversy in the appellant, and vested the title of the other one-half interest in fee to J. M. Baker, and declared that Mrs. Effie Conlan was the owner of a life estate in one-half interest in the lands and that the parties were entitled to a partition according to their respective interests. The court dismissed appellant's complaint for want of equity, and entered a decree in favor of Mrs. Effie Conlan subrogating her to the rights of Goodman Bros. under the deed of trust in the sum of $ 4,655.50 with interest at the rate of 10 per cent. per annum from July 25, 1917, and decreed that the same was a lien on the lands in controversy and directed that unless the said sum was paid that the lands be sold to satisfy the same, and appointed a commissioner to execute the decree. The appellant duly prosecuted this appeal.

The first question for our consideration is, were the lands, at the time of the death of James G. Conlan, his homestead?

Mrs. Effie Conlan testified on this issue substantially as follows: At the time of her husband's death, which occurred in June, 1908, they were living at Hollywood, Miss. They had lived on the place in controversy, which was their home, until a short time before they went to Mississippi. They lived on the place from the time of their marriage (1905) until her husband's death. It was their home. Her husband was a contractor engaged in levee business and he had a temporary job of levee work in Mississippi. It was his plan to go back the first of the year to Lee County. At the time of his death these lands were cultivated for his benefit. On cross-examination Mrs. Conlan was asked whether her husband at the time he was occupying the place was simply holding the same as tenant and she answered, "No, he lived there and it was his home." She knew it was his home, because it was the only home that he had. He always said that it was his home and his mother said that it was.

Appellant testified that James G. Conlan, her brother, never did live on the land and make it his home. He occupied it from April 1906, until December of the same year as a tenant. Appellant received her part of the rent. During the time that her brother lived there, he lived in one of the tenant houses just temporarily. It had two large rooms and two side rooms, it was just a negro tenant house. Negroes had lived in it. Prior to that time he had been...