Norfleet v. Hampson

• Decision Date: 17 February 1919
• Docket Number: (No. 115.)
• Citation: 209 S.W. 651
• Parties: NORFLEET v. HAMPSON et al.
• Court: Arkansas Supreme Court

Page 651

209 S.W. 651

NORFLEET v. HAMPSON et al.

(No. 115.)

Supreme Court of Arkansas.

February 17, 1919.

Appeal from Mississippi Chancery Court; Archer Wheatley, Chancellor.

Suit by Susie T. Norfleet against J. K. Hampson and others. Judgment of dismissal, and plaintiff appeals. Affirmed.

This is a suit by Susie T. Norfleet against J. K. Hampson and others to recover an undivided 1242/7279 interest in the lands described in the complaint, for an accounting of the rents and profits, and for a partition of the lands. The material allegations of the complaint are as follows:

Louis Hanauer conveyed the Nodena plantation to D. L. Ferguson, reserving a vendor's lien for the balance of the purchase money, $21,114.60. In addition to this debt, Ferguson seems to have been indebted to Louis Hanauer in the further sum of $17,766.03, and to Schoolfield, Hanauer & Co., a partnership composed of Louis Hanauer, W. W. Schoolfield, and H. G. Miller, in the sum of $18,529.05. Hanauer procured a decree foreclosing his vendor's lien, and John B. Driver was appointed commissioner to sell. At the commissioner's sale the plantation was bid in by F. P. Poston and D. T. Schoolfield as trustees for the estate of Louis Hanauer (he having died) and Schoolfield, Hanauer & Co., the estate to have "a first lien and claim on the property, and to be first satisfied therefrom," for the $21,114.60 due it as the balance of the purchase money, "and afterwards the excess over and above said Hanauer's lien or purchase money to be distributed," pro rata on the debt of $17,766.03 due Hanauer's estate and the debt of $18,529.05 due Schoolfield, Hanauer & Co. The sale was confirmed by the court, and on February 14, 1891, John B. Driver executed a commissioner's deed to Poston and Schoolfield as trustees. This deed recites that —

"Poston and Schoolfield as trustees bought the property for the estate of Louis Hanauer who holds a first lien and claim on the same for the balance of purchase money, to wit, the sum of $21,114.60, and then for the joint benefit and interest of the estate of Louis Hanauer to the sum of $17,766.03, and the firm of Schoolfield, Hanauer & Co. for the sum of $18,529.05."

Louis Hanauer, who died prior to 1891, bequeathed his estate (after certain specific legacies) to his niece, Mary Hampson, and to her children, the appellees. By this bequest Mrs. Hampson and her children became the owners of the debt of $21,114.60, which was to be first satisfied out of the property, and of the debt of $17,766.03 and one-third of the debt of $18,529.05, which last-mentioned debts were to share pro rata in the proceeds of the property after the debt of $21,114.60 was fully paid and satisfied. The claims of Mrs. Hampson and her children therefore aggregated $45,056.98, of which $21,114.60 was a first lien on the property, while the balance of the indebtedness secured by the property, being two-thirds of the debt due the old firm of Schoolfield, Hanauer & Co. (which had been dissolved by the death of Louis Hanauer) amounted to $12,352.70.

On January 9, 1897, the trustees conveyed the property to Mrs. Hampson and her children, or rather to W. W. Schoolfield as trustee for them, in consideration of the $45,056.98 due them, and the assumption by Mrs. Hampson and her husband of the $12,352.70 due W. W. Schoolfield and H. G. Miller, the other two members of the firm of Schoolfield, Hanauer & Co. The deed of conveyance set forth the entire history of the property and of the transactions referred to above, and contained the following recital with reference to the deed from John B. Driver as commissioner to the trustees:

"Said deed having been executed to said Poston and Schoolfield as trustees to hold the legal title thereto for the benefit of the estate of Louis Hanauer which held at that time a first lien and claim on said premises for the balance of purchase money amounting at said date to the sum of $21,114.60, and thereafter for the joint benefit and use of the estate of Louis Hanauer to secure an indebtedness due him amounting to $17,766.03, and to the firm of Schoolfield, Hanauer & Co., amounting to the sum of $18,529.05; it being provided in said deed that the last-named debt due the estate of Louis Hanauer and the debt due the firm of Schoolfield, Hanauer & Co. should, after the payment of the vendor's lien in favor of the estate of Louis Hanauer, in the event of a sale of said property by said trustees, share pro rata according to the amount of the debts stated in the surplus proceeds thereof."

In the last paragraph of the deed to Schoolfield as trustee for Mrs. Hampson and her children is the following:

"It is understood and agreed that the said Hampson and wife and Schoolfield as trustee will assume and take care of the indebtedness due to W. W. Schoolfield and H. G. Miller, the other two partners of the firm of Schoolfield, Hanauer & Co., as provided in the deed above mentioned."

The possession of the property was delivered to Mrs. Hampson and her children at the date of the trustee's deed to them January 9, 1897, and they have remained in possession from that day until this, a period of more than 22 years. During that time they have cultivated the land, and applied the rents and profits to their exclusive use and benefit.

On November 24, 1897, H. G. Miller executed a deed to Susie M. Thomas, now Susie T. Norfleet, by which he conveyed his "undivided one-third interest in the interest of the former firm of Schoolfield, Hanauer & Co. in and to the said Nodena plantation."

The complaint alleges that between the years 1899 and 1903, Mrs. Hampson paid the plaintiff $500 on one occasion and $1,500 on another. No other payment was ever made.

All the various deeds referred to were made exhibits to the complaint. Other facts alleged in the complaint will be stated or referred to in the opinion.

A general demurrer to the complaint was filed, which was sustained by the court. The plaintiff refused to plead further and elected to stand upon her complaint. The court dismissed the complaint for want of equity, and the plaintiff has appealed.

Carmichael & Brooks, of Little Rock, for appellant.

Chas. T. Coleman, of Little Rock, for appellees.

HART, J. (after stating the facts as above).

On the 14th day of February, 1891, John B. Driver, as commissioner of the chancery court, conveyed the lands involved in this suit to F. P. Poston and D. T. Schoolfield as trustees for the estate of Louis Hanauer and the firm of Schoolfield, Hanauer & Co. for the sum of $45,000. Said Poston and Schoolfield as trustees purchased the property, first, for the estate of Louis Hanauer, which held a lien on said lands for the balance of the purchase money for the sum of $21,114.60; and then for the joint benefit of the estate of Louis Hanauer in the sum of $17,766.03 and the firm of Schoolfield, Hanauer & Co. in the sum of $18,529.05. This deed created an active trust in favor of these parties within the meaning of the rule in Randolph v. Read, 129 Ark. 485, 196 S. W. 133, as contended for by counsel for the plaintiff. H. G. Miller was a member of the firm of Schoolfield, Hanauer & Co., and owned an undivided one-third interest therein. He was also guardian of Susie T. Thomas, a minor, and became indebted to her as such guardian in a large sum of money. On the 24th day of November, 1897, after Susie T. Thomas became of legal age, Miller conveyed to her by deed his undivided interest in the lands in this suit for the sum of $6,000, and she succeeded to the rights and interest of Miller in said lands; that she is entitled to an undivided 1242/7279 interest in said lands. In January, 1898, Susie T. Thomas married M. B. Norfleet, and is the plaintiff in this action.

But defendants invoke the equitable doctrine of laches as a bar to the relief sought by the plaintiff. The plaintiff in her complaint prayed for a recovery of her undivided interest in the lands, for an accounting of the rents and profits, and for partition of the lands. The chancery court sustained a general demurrer to her complaint and dismissed it for want of equity. Laches was not specifically pleaded, but this was not necessary. The defense of laches goes to the equity of the bill. That is to say, assuming the facts stated in the bill to be true, the bill is not maintainable as a matter of law because of laches. Tate v. Logan, 88 Ark. 333, 114 S. W. 696, and Dickson v. Sentell, 83 Ark. 385, 104 S. W. 148.

The doctrine of laches is founded on the equitable maxims of "He who seeks equity must do equity," and "Equity aids the vigilant." Hence, while there is a great variety...