Merrell v. Harris

• Decision Date: 04 June 1898
• Citation: 46 S.W. 538
• Parties: MERRELL v. HARRIS et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Arkansas Supreme Court

46 S.W. 538

MERRELL v. HARRIS et al.¹

Supreme Court of Arkansas.

June 4, 1898.

Appeal from circuit court, Pulaski county; Joseph W. Martin, Judge.

Ejectment by Grace A. Merrell against W. W. Harris and others. Judgment for defendants. Plaintiff appeals. Affirmed.

Hill & Anten, for appellant. Ratcliffe & Fletcher, for appellees.

BUNN, C. J.

The only question presented by this record is: Has a probate court (in which a guardianship of minors is pending) the power to order the sale of the homestead left them by the mother (the surviving parent) for the benefit of said minors? Lucy M. Fulton died seised and possessed of lots 1 and 2 in block 17 in the city of Little Rock, and occupied the same and the improvements thereon as her homestead until the day of her death, her husband having died previously. So far as this record shows, she left no other property and no debts, and no children except her minor sons Chester and Freddie, named in the caption, who were 19 and 17 years, respectively, at the institution of this suit. After the mother's death, and before the institution of this suit, the duly appointed and acting guardian of these minors, presumably on proper showing, was ordered and directed by the probate court to sell in the usual manner the said homestead property as that of the estate of said minors, and for their benefit; and the sale was accordingly made, and one W. H. Halliburton became the purchaser, and he subsequently sold to appellee Harris, who took immediate possession under his deed, and was in possession at the institution of this suit, which is a suit in ejectment to eject him from the premises. The foregoing facts appear in the complaint, to which the defendants interposed a general demurrer, raising the question stated at the outset, which demurrer was sustained, and the plaintiff appealed to this court.

This is a new question in this court, so far as we have been able to ascertain, and withal a question which, from the very nature of things, has not been very often presented in any of the courts, and for that reason precedents are not numerous. All the cases, without exception we believe, which have been called to our attention by the appellant's counsel, are cases of sales or attempted sales under the orders of probate court, at the instance of administrators, to pay debts of the deceased owners of the homestead property; and none of them are cases where the object of the sales was to appropriate the proceeds to the support and education of the minor or minors or for his or their benefit in any way. That the homestead, during the holding of the widow or the minority of any of the children, cannot be sold to pay the debts of the father's estate, goes without further controversy in this state; and the same is to be said of the sale of the homestead left by the mother, as in this case, for her debts during the minority of her children or any of them. But the question is: Can the probate court, in any case, lawfully order the sale of such homestead for the benefit of the minor children, who enjoy it as a descended or transmitted homestead from the deceased homesteader? In Morton v. McCanless, 68 Miss. 810, 10 South. 72, the supreme court of Mississippi said: "The whole object of the exemption law of 1865 was to preserve the property from creditors, and not to affect the power of the courts to deal with the property as that of the children and heirs of the exemptionist." Such is the view we take of it. The Mississippi law on the subject, while different from ours in some particulars, yet is so far like ours as to render the same principles applicable in all essential particulars. There are several other cases from the same court, which either directly or incidentally sustain the same doctrine. The supreme court of Georgia expresses some doubt as to the power in the probate (chancery) court to sell; but, if it exists, it exists only as in cases of sale of other property of the minor. Sloan v. Nonce, 45 Ga. 310. See, also, as to sales of interests of remainder-man, Jenkins v. Faby, 73 N. Y. 355; Cooper v. Hepburn, 15 Grat. 551; Bell v. Clark, 2 Metc. (Ky.) 573; Thaw v. Ritchie, 136 U. S. 519, 10 Sup. Ct. 1037. In discussing this identical question, with the foregoing decisions, as well as others on the subject, in mind, Woerner, in his work on the American Law of Guardianship (section 75), after a general reference to the subject of a minor's rights in the homestead, and the sale thereof, has this to say: "Under this aspect of the question, and remembering that a homestead right descending from a deceased parent may be the only property owned by a minor, it would appear that a court having jurisdiction over the estate of such minor should be possessed of the power to order the sale of such homestead rights, if it be necessary for his education, maintenance, or well-being." Following the argument of the author, suppose, as in the case at bar, there were no debts, no other property, and that there was but one child, and he or she, as the case may be, the only child, and heir; and, upon that, suppose that the rents and profits of the homestead place were nothing, or not enough to support and educate the child, and that there was no one willing or bound to occupy the premises with the minor, and thus assist in his support and education; in other words, suppose the homestead right was unavailable or utterly inadequate for the purpose. Can it be the law that the probate court, or the court of general, original, and exclusive jurisdiction of minors and their estate, cannot sell the property, and thereby give it the only real value it has so far as the minor is concerned? We cannot think such is the law. The constitution does not in terms seek to do more than protect from the grasp of creditors. There is neither expressly nor by implication a restriction upon the powers of the probate court in respect to this class of the property of minors. The case we have supposed presents the question fairly, and in such a case we cannot see how but one answer can be given. If one case could exist wherein the probate court would possess the power, that is all that is necessary to solve the question. To carry the discussion further than that would simply be to discuss questions pertaining to the proper or improper exercise of the court's discretion in the instances as they may arise accordingly as the facts may determine. In the present case there is no controversy as to an abuse of the discretion of the court, and we therefore affirm the judgment of the court below.

1. Rehearing denied January 27, 1898.

BATTLE, J. (dissenting).

The order of the probate court in question, which directed the sale of the homestead of minors, is a nullity.

What is a homestead? In Williams v. Dorris, 31 Ark. 466, Chief Justice English, in defining it, said it "is the place of a home or house; that part of a man's landed property which is about and contiguous to his dwelling house. A homestead necessarily includes the idea of a house for a residence, or mansion house. The dwelling may be a splendid mansion, a cabin, or tent. If there be either, it is under the protection of the law, but there must be a home residence before it and the land on which it is situated can be claimed as a homestead." Tillar v. Bass, 57 Ark. 179, 21 S. W. 34.

The homestead law creates no new estate, but protects the occupant in the use and occupancy of the land set apart as a homestead during the time of such occupancy. Chambers v. Sallie, 29 Ark. 412; Booth v. Goodwin, Id. 637. Hence "an estate held in common with others is sufficient to support a homestead exemption, without exclusive possession by the tenant who claims the privilege." Robson v. Hough, 56 Ark. 621, 20 S. W. 523; Thompson v. King, 54 Ark. 9, 14 S. W. 925; Sentell v. Armor, 35 Ark. 49; Sims v. Thompson, 39 Ark. 301; Ward v. Mayfield, 41 Ark. 94; Stull v. Graham, 60 Ark. 461, 31 S. W. 46. A leasehold estate is sufficient for that purpose (Robson v. Hough, 56 Ark. 621, 20 S. W. 523); or an equitable title (Rockafellow v. Peay, 40 Ark. 69). In the case last cited, the court said: "Indeed, it is probable that the homestead exemption withdraws from the demands of creditors whatever interest the claimant has in the property dedicated to that use." All these cases prove that the homestead interest is a...