Oliver v. Routh
Decision Date | 27 March 1916 |
Docket Number | (No. 284.) |
Citation | 184 S.W. 843 |
Parties | OLIVER v. ROUTH et al. |
Court | Arkansas Supreme Court |
Appeal from Madison Chancery Court; T. H. Humphreys, Chancellor.
Action by George Thomas Oliver, by next friend and mother, Princie Arrington, against E. A. Routh and others. From a decree for defendants, plaintiff appeals. Reversed and remanded, with directions.
Appellant instituted this action in the chancery court against appellees and set up two causes of action:
(1) Appellant seeks to set aside a decree of foreclosure of a vendor's lien on real estate made in the Madison chancery court several years ago in a suit wherein the Madison County Bank was plaintiff and Percie and Geo. Thos. Oliver were defendants, on the grounds that it is void. The First National Bank was the successor of the Madison County Bank.
(2) Appellant seeks to set aside as void an order of the Madison probate court for the specific performance of an undivided interest in the same land.
The material facts are substantially as follows: On October 6, 1904, Geo. B. Oliver, died, owning the land in controversy, situated in Madison county, Ark., which was his homestead. He left surviving him his widow, Princie Oliver, now Princie Arrington and Geo. Thos. Oliver, his minor child and sole heir at law. Prior to his death G. B. Oliver and T. G. Gamble owned the land in controversy, each owning an undivided one-half interest therein. On the 20th day of May, 1903, Gamble by warranty deed, conveyed his interest in the land to G. B. Oliver. The deed recites that a vendor's lien is retained for $500 of the purchase money, evidenced by a promissory note of even date. The note was transferred by Gamble to the Madison County Bank, and in December, 1904, after the death of Oliver, the Madison County Bank instituted proceedings in the chancery court against the widow of G. B. Oliver, who was named as Percie Oliver, and Geo. Thos. Oliver, the minor child, to foreclose a vendor's lien on the lands in controversy. Service was had upon the widow and minor child of Geo. B. Oliver, deceased, in the manner required by statute, but the clerk failed to put the seal of the court on the summons. The court found there was a balance due of the purchase money on the said land in the sum of $537, and a decree of foreclosure of the vendor's lien of plaintiff was entered of record. The land was duly sold under the decree, and the purchaser at the commissioner's sale conveyed the land by deed to E. A. Routh.
In the present action appellant introduced evidence tending to show that some of the installments of the purchase price sued on in that case were not due at the time the decree of foreclosure was entered of record. Testimony was also introduced by appellant tending to show that certain payments had been made which were not taken into account by the court in rendering the decree of foreclosure. Evidence was introduced by appellees tending to show that no such payments had been made. The views we shall hereinafter express, however, renders it unnecessary to set out this testimony in detail. It is undisputed that the land in controversy was the homestead of Geo. B. Oliver at the time of his death, and that Geo. Thos. Oliver was still a minor at the time of the institution of this suit. The suit was brought by his mother as next friend.
After the death of Geo. B. Oliver, administration was had upon his estate. A petition was filed in the probate court setting up that Thos. J. Oliver, the twin brother of Geo. B. Oliver, had purchased one-half interest in the land in controversy from his brother prior to his death. No written contract of purchase was had between the brothers. It was shown, however, to the probate court that Thos. J. Oliver had made a verbal contract with his brother for the purchase of an undivided one-half interest in the land, and had paid him therefor the sum of $400 as part of the purchase money. The balance of the purchase money was paid to the administrator, and an order was made pursuant to sections 209-214 of Kirby's Digest for the specific performance of the contract.
The chancellor entered a decree dismissing appellant's complaint for want of equity as to the decree of foreclosure in the Madison chancery court. It was also decreed that his cause of action seeking to set aside the judgment in the Madison probate court should be dismissed without prejudice to any proceeding appellant might hereafter institute in the probate court in relation thereto. The case is here on appeal.
S. H. Sornberger, of Sapulpa, Okl., for appellant. W. N. Ivie, of Rogers, for appellees.
HART, J. (after stating the facts as above).
It is claimed by counsel for appellant that the decree of foreclosure in the case of the Madison County Bank against the widow and minor child of Geo. B. Oliver, deceased, was void, because the writ of summons was without the official seal of the clerk; but this court has decided adversely to him in regard to this contention. In the case of Rudd v. Thompson & Barnes, 22 Ark. 363, the court held that a writ of summons is not void for want of the official seal of the clerk, and that it may be amended on application to the court. The court further held that, if no application to amend has been made, the defect is ground of reversal of a judgment rendered by default, but that the writ cannot be treated as void.
Again, it is contended that the judgment of the Madison chancery court foreclosing the vendor's lien on the property in controversy...
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