Morgan v. Hattendorf

• Decision Date: 14 October 1946
• Docket Number: No. 4-7937.,4-7937.
• Citation: 196 S.W.2d 997
• Parties: MORGAN v. HATTENDORF.
• Court: Arkansas Supreme Court

196 S.W.2d 997

MORGAN v. HATTENDORF.

No. 4-7937.

Supreme Court of Arkansas.

October 14, 1946.

Rehearing Denied November 18, 1946.

Appeal from Chancery Court, Pulaski County; Frank H. Dodge, Chancellor.

Ejectment by James L. Morgan against R. J. Hattendorf, instituted after defendant had secured possession in a prior unlawful detainer action. From a decree for defendant, plaintiff appeals.

Affirmed.

James A. Plotner, of Little Rock, for appellant.

Price Shofner, of Little Rock, for appellee.

GRIFFIN SMITH, Chief Justice.

In street vernacular it might be said that the parties litigating have commuted between Probate, Chancery and Circuit Courts in a manner disclosing diligence and legal finesse entirely consonant with the respective purposes of winning a decision.

As an example of conflict in jurisdiction, the appeal is from action of the Chancery Court in denying the plaintiff's prayer in an ejectment suit filed in Circuit Court.

Evaline Morgan, colored, died when about ninety years of age. In 1902 she purchased the real property which is the subject matter of this controversy, and continued to own it. In April, 1944, C. L. Kraft was appointed guardian of the person and [curator of] the estate of Evaline when she had become mentally incompetent. James L. Morgan was Evaline's stepson, and together they occupied a residence on the property. It was mortgaged to a bank to secure an indebtedness of more than $600, with interest. In July following his appointment Kraft petitioned for a probate order directing sale of Evaline's equity, alleging she was then an inmate of an institution where room, board, and certain benefits were provided, but "[she is not being supplied with] clothing and other things necessary for her well-being." The prayer was that sale be authorized under Act 402 of 1941. The property brought $1,125, of which $435.12 was paid to the guardian by Hattendorf. No appeal was taken from the judgment. September 20th Hattendorf gave Morgan notice to vacate, and upon his refusal suit in unlawful detainer was filed. October 11 the sale was confirmed,¹ a judgment recital being that the proceedings were according to law "and that the facts set forth in the petition for sale entitled the guardian to make said sale."

On Morgan's motion the cause was transferred to Chancery. Morgan was in possession. It was stipulated that appellant was not a party to the guardian's suit. Other points of agreement are (a) that Evaline had promised to will the property to her stepson in consideration of support; (b) that the cause was heard by Chancery "* * * and rights of the parties to the property were tried by that court"; (c) questions submitted included Morgan's contention that he was entitled to vacate former judgments on the ground of Evaline's agreement to make the will.

April 18, 1945, the Court found that Morgan had breached his contract to support Evaline, and therefore had no interest in the estate. The decree states that testimony on this issue was heard, reflecting contentions of each side.

Within a few weeks after this decree was rendered Evaline died. Time for appealing expired in October. June 20, nearly four months before the appeal period had terminated, Morgan probated a will executed by Evaline, in which the property was devised to him. This action was not challenged, and that record stands.

Upon the one hand, it is insisted that Morgan's property rights became final under the will, while on the other hand it is urged that his interest in the subject matter was adjudicated by the decree wherein it was found that consideration for the will had failed.

First—Hattendorf's Rights.—Appellee bought at a guardian's sale regular on its face. The judgment of confirmation contained recitals which, if true, gave the Court jurisdiction. But, as it is now urged, the agreed statement shows the sale was not advertised as provided by law, hence the judgment is void and the transaction may be collaterally attacked. Our view is that the sale comes within the rule announced in Day v. Johnston, 158 Ark. 478, 250 S.W. 532. See also Collins v. Harris, 167 Ark. 372, 267 S.W. 781; Alexander v. Stack, 172 Ark. 530, 289 S.W. 484; Roberts v. Miller, 173 Ark. 38, 291 S.W. 814; Hart v. Wimberly, 173 Ark. 1083, 296 S.W. 39; Sullivan v. Times Publishing Co., 181 Ark. 27, 24 S.W.2d 865; Dodd v. Hopper, 182 Ark. 24, 30 S.W.2d 837; Swindle v. Rogers, 188 Ark. 503, 66 S.W.2d 630; Levinson v. Treadway, 190 Ark. 201, 78 S.W.2d 59; Jordan v. Midland Savings & Loan Co. of Denver, Colorado, 193 Ark. 313, 99 S.W.2d 260; Tuchfeld v. Hamilton, 203 Ark. 428, 156 S.W.2d 887; Fisher v. Cowan, 205 Ark. 722, 170 S.W.2d 603.

In the Day-Johnston case Act 263 of 1919, now Pope's Digest, Sec. 6257, was discussed. After tracing...