McLoy & Tritter v. Arnett

• Decision Date: 20 November 1886
• Citation: 2 S.W. 71,47 Ark. 445
• Parties: MCCLOY & TROTTER v. ARNETT
• Court: Arkansas Supreme Court

2 S.W. 71

47 Ark. 445

MCCLOY & TROTTER v. ARNETT

Supreme Court of Arkansas

November 20, 1886

APPEAL from Drew Circuit Court, Hon. J. M. BRADLEY, Judge.

Judgment affirmed and reversed.

McCain & Crawford and Z. T. Wood for Appellants.

The homestead of a deceased debtor, under the constitution of 1868, was not entirely exempt from the payment of his debts. The exemption was to last during widowhood and "during the minority of the children." Subject to these temporary rights the land occupies the same position as other lands. The sale of lands subject to a life estate is as old as the common law.

When a widow has a homestead in her own right, neither the widow nor children have any homestead rights in the lands of the late husband and father. 45 Ark. 340.

The dower right of the widow is superior to the homestead right of the children. 37 Ark. 302. It is prior in point of time as it vests at the time the husband becomes seized.

U. M. & G. B. Rose for Appellants.

The case arose under the constitution of 1868, and, by its provisions the rights of the parties hereto must be determined.

That constitution confers upon "a married man or head of a family" no new or hitherto undefined estate in land. It simply creates an exemption from forced sale, under execution or otherwise, of any land owned by him, after he has once impressed it with the character of a homestead during his life. All the indicia of ownership still exist. He may live on it or not, as he pleases. Brown v. Watson, 41 Ark. 309; Euper v. Alkire & Co., 37 Ark. 283; Tomlinson v. Swinney, 22 Ark. 400. He may alienate it. Stanley v. Snyder, 43 Ark. 429. He may use it in any manner he sees fit. Klenk v. Knobel, 37 Ark 298. But under that constitution the creditor always had recognized rights in the homestead of his debtor. It was subject to the lien of any judgment that the creditor might recover against him, and so soon as it passed out of his hands the lien might be enforced. Jackson v. Allen, 30 Ark. 110; Moore v. Granger, Id., 574. And at his death his exemption ends altogether. If the personalty of the debtor is insufficient, the homestead may be subjected, and the purchaser at administrator's sale gets all title which the deceased debtor had.

But the constitution of 1868 placed the homestead under an additional charge, viz.; As a homestead for the widow and children under certain conditions. It could not be said that any estate was thus created in the land. If so, it was, at most, a conditional life estate in the wife, or a determinable estate for years in the children. It is not a continuation of their father's estate, but a particular interest vested in them by the constitution. Their interest is independent of the ownership of the land, and cannot be affected by a conveyance of it. If plaintiff's defend upon their rights under the homestead exemptions for the maintenance of this action it must be dismissed. They are not parties in interest, for their rights are expressly saved by the order of sale. The husband holds the freehold, which cannot be alienated at forced sale. The widow has only the right to occupy for life upon condition. The interest of the children either follows that of their mother, or is of a like character, being only the usufruct of the premises for a determinable number of years. After the death of the debtor the freehold descends to the heirs, subject to the widow's dower, and the payment of the debts of the deceased. The homestead right of the widow and children cannot be defeated by a conveyance of it. An administrator's sale passes title to the reversion and upon the divestiture of the homestead rights the title becomes perfect in the purchaser. Thompson on Homesteads and Exemptions, sec. 635; Judge of Probate v. Simonds, 46 N.H. 368.

J. M. & J. G. Taylor for Appellee.

The homestead is exempt from sale not only during the father's life but during the minority of the children. Const. Ark. 1868, art. 12, secs. 3, 5.

There is no question here as to whether the widow's dower right is superior to the homestead right of the children, but if there were the homestead right would prevail. 32 Mich. 380, 402; 5 Allen, 146; 11 Ib., 194; 21 Texas, 605; 68 Mo. 13.

The probate court had no jurisdiction to subject the homestead of a deceased person to the payment of his debts, during the minority of the children, and a sale of the reversion was void. Act. Dec. 8, 1852; Const. 1868, art. 12; Const. 1874, art. 9, sec. 6; 29 Ark. 280; Ib., 633; 37 Id., 316; Acts 1873, p., 240; Thomp. on Homest. & Ex., sec. 635; Freeman Void Jud. Sales, sec. 35.

That the homestead reversion cannot be sold, see 53 Ala. 452; 23 Cal. 415-18; 12 Cal. 114; 65 N.C. 447; 60 Ill. 281; 66 Id., 224.

The minors could maintain ejectment; Thomps. on H. & Ex., secs. 622, and authorities supra, and are entitled to recover rents. 37 Ark. 316; Mansf. Dig., sec. 2637. And they cannot be mulcted for improvements thereon. Thomps. on. H. & Ex., sec. 552; 29 Ark. 280; 37 Id., 316.

The widow cannot so sell the homestead as to pass such title to a stranger that he would be entitled to any part of the property on partition, nor so as to give him any interest in the rents. 39 Ark. 161; 10 F. 601.

The widow's interest terminated upon her marriage. Const. 1868, art. 12, secs. 4, 5. The assignment of the dower in the homestead does not affect the children's rights.

The appellants can only claim an offset against the rents for the increased rents and profits, which are directly traceable to the permanent improvements placed upon the lot. 51 Ala. 400; Jones on Mortg., secs. 1126, 1130.

They cannot improve the minors out of their estate.

The appellants must have taken notice of appellee's rights. They could not have believed they were the owners, under color of title even, and thus entitled to the benefit of the betterments act. Their title being void, they cannot recover for improvements against an infant. 85 N.C. 184; 84 Id., 479; 15 Texas, 563; 117 Mass. 360.

M. W. Benjamin amicus curiae.

The probate court had no jurisdiction to order the sale of a homestead, or the reversionary interest in the same, during the minority of the children, and a sale made thereof is void. Const. 1868, art. 12, sec. 5; 27 Ark. 235; 38 Texas, 487; 45 Cal. 433; 35 Id., 310; 75 N.C. 430; 25 Wis. 525; 29 Ark. 633; 37 Id., 316; Kirksey v. Cole, Mss.

OPINION

SMITH, J.

The minor children of Samuel F. Arnett, deceased, brought ejectment for a town lot, which had been their father's homestead. The title of defendants was acquired from Arnett's widow. She had applied to the probate court for an assignment of dower in certain real estate, owned by her husband during coverture, and alienated by him without her consent in legal form; and also for a reservation of homestead in the town lot. Her prayer for homestead was rejected; in lieu of which dower was admeasured to her in the homestead premises, the line passing through the center of the hall of the dwelling house. In 1873, Arnett having died in the year preceding, the circuit court, then exercising probate jurisdiction, had at the instance of creditors, directed the administrator to sell this lot, subject to the widow's dower and homestead. At this sale the widow became the purchaser of the reversionary interest, and the sale was approved and a conveyance' made to her. She afterwards remarried, and she and her husband either mortgaged the lot to McCloy & Trotter or sold it to them absolutely, with the privilege of repurchasing within a given time. Under this deed the defendants obtained possession. And they further pleaded the betterments act.

To the pleas of title a demurrer was sustained, while the pleas, asserting a lien on the lot for taxes paid and repairs made, were adjudged to be good. The issue of fact so raised was tried before the court without a jury, upon the following agreement as to facts:

"We hereby agree that the following statement of facts may be read in evidence in this cause on behalf of the plaintiff:

"That Samuel F. Arnett was a married man, the head of a family, a resident and citizen of the state of Arkansas, and owned and occupied the premises in controversy, together with the dwelling and appurtenances thereon, as a homestead; and that said premises did not exceed one acre of land, and are worth not exceeding $ 2000; that the same was in the town of Monticello; that he so owned and occupied the same up to, and at the time of, his death in 1872; that he died leaving a widow and two minor children, viz.; Lena and Jesse, the plaintiffs herein; that the plaintiffs, Lena and Jesse, are still under the age of 21 years; that his widow, Mary N Arnett, remained unmarried until 1874, when she intermarried with one George Foreman, and took another homestead in her own right, (in 1878) carrying the children with her; and she is still living.

"That defendants, McCloy & Trotter, have had possession of said premises since the 24th day of January, 1883, receiving the rents and profits thereof, and are still in possession of same.

"That the rents for the year 1883 were reasonably worth $ 8.33 per month, and for 1884 and 1885, $ 12.50 per month; that they have not paid those rents to these plaintiffs.

"And in behalf of defendants, the following: Defendants, peaceably and in good faith, believing themselves too be the true owners, after they took possession made valuable and lasting improvements on the premises, of the value of $ 350, of which amount $ 125 was made on the dower part, and $ 225 on the remainder.

"The rents for that claimed as dower are two-fifths of the rents of the whole. To redeem and pay taxes on the premises, the defendants expended $ 65.50 in currency.

"Signed:

"W. S. MCCAIN,

"For Defendants.

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