Prager v. Wootton

• Decision Date: 23 June 1930
• Docket Number: 67
• Citation: 30 S.W.2d 845,182 Ark. 37
• Parties: PRAGER v. WOOTTON
• Court: Arkansas Supreme Court

30 S.W.2d 845

182 Ark. 37

PRAGER v. WOOTTON

No. 67

Supreme Court of Arkansas

June 23, 1930

Certiorari to Garland Chancery Court; Wm. R. Duffie Chancellor; writ denied.

Petition for writ of certiorari denied.

O. H Sumpter, for appellant.

Martin, Wootton & Martin and B. N. Florence, for appellees.

OPINION

PER CURIAM.

Grace Prager, widow, and Irene Prager Bourdier and John D. Prager, children and sole heirs at law of Charles J. A. Prager, deceased, filed in this court a petition for certiorari to quash a judgment of the Garland Chancery Court reviving a mortgage foreclosure proceeding by Afton Williams Wootton et al., against Charles J. A. Prager; and a transcript of the record of the proceedings in the chancery court is tendered with the petition.

It appears from the face of the record tendered that Afton Williams Wootton and E. H. Wootton, trustee, brought suit in the Garland Chancery Court against Charles J. A. Prager and Grace Prager, his wife, to foreclose a mortgage on real estate situated in Hot Springs, Garland County, Arkansas. The suit was filed on February 4, 1928, and summons was duly served on the defendants on February 6, 1928. The record further shows that on February 6, 1929, which was an adjourned day of the December, 1928, term of the Garland Chancery Court there was the following order in the case:

"On this day comes the defendants by their solicitor, O. H. Sumpter, Esquire, and suggests the death of the defendant, Charles J. A. Prager."

On January 28, 1930, the attorneys for the plaintiff filed in said cause in said court a motion to revive the suit in the name of Grace Prager, Irene Prager Bourdier, and James D. Prager, widow and heirs at law of Charles J. A. Prager, deceased; and for grounds state that Charles J. A. Prager died on January 26, 1929, and that no person has qualified as his personal representative, and that the action concerns only the right of the heirs of said Charles J. A. Prager to the property described in the complaint. The records of the chancery court show the filing of the motion to revive the cause in the names of Grace Prager, Irene Prager Bourdier and James D. Prager, widow and heirs of Charles J. A. Prager, deceased. On the 11th day of February, 1930, Irene Prager Bourdier and James D. Prager filed separate responses in which it was claimed that the right to revive the action had expired by limitation. On the 11th day of March, 1930, which was an adjourned day of the December term of 1929 of said chancery court, it was adjudged and decreed that the suit be revived in the names of the defendants, Grace Prager, Irene Prager Bourdier, and James D. Prager, widow and heirs of Charles J. A. Prager, deceased.

The chancellor proceeded upon the theory that the revivor must be had under § 1062 of the Digest, and that the suit could not be revived against the heirs of the defendant until one year had elapsed after the death of the defendant, no person having qualified as his personal representative. In this construction of the statute, the chancellor was wrong, for no part of the action survived against the personal representative of the defendant. The rule is that the heirs or devisees of a mortgagor, who dies the owner of the fee, are necessary parties in a suit to foreclose the mortgage. Hence, in a suit to foreclose, the heirs at law of the deceased mortgagor should be made defendants, or some excuse for not making them defendants, should be shown in the complaint; as that the mortgagor conveyed his estate in the mortgaged lands before his death, or that it was sold under execution, or that after his death his interest in the lands was sold under an order of the probate court, etc. Simms v. Richardson & May, 32 Ark. 297; and Pillow v. Sentelle & Company, 39 Ark. 61.

Of course, the personal representative of a deceased mortgagor is a proper party in a mortgage foreclosure suit of real estate, for the lands of a decedent are assets in the hands of his personal representative for the payment of his debts, if needed for that purpose, and he would be a proper party in order to work out the rights of the creditors of the decedent. The heirs, however, are indispensable parties for the reason that, upon the death of the ancestor, the title vests in the heirs, and they can only be divested of their equity of redemption in the mortgage property in a proceeding to which they are made parties.

This view was recognized by the court in State Fair Association v. Terry, 74 Ark. 149, 85 S.W. 87, where it was said: "Upon the death of a party, the title to his real estate passes at once to his heirs (subject, of course, to the rights of creditors to be worked out through the administrator); and the administrator cannot represent them in court. They are necessary parties where the title to real estate is involved, and the court should, of its own motion, refuse to proceed until they are brought in."

The sections of our statute on the revival of actions is a part of our Civil Code, and are to be construed together. State Fair Assn. v. Townsend, 69 Ark. 215, 63 S.W. 65.

In Putnam v. Putnam, 21 Mass. 139, 4 Pick. 139, it was held that where a bill in equity to redeem mortgaged premises is abated by the death of the complainant, his heirs may revive the suit.

In Sutherland v. Rose, 47 Barb. 144, it was held that on the death of a mortgagor in an action by him for the cancellation and satisfaction of the mortgage, the heirs, and not the personal representative, are the proper parties to continue the action, as the heirs alone have an interest in the satisfaction of the mortgage and in the right to redeem.

In the application of these principles of law, we are of the opinion that § 1063 of the Digest applies wherein it is provided that "upon the death of a defendant in an action for the recovery of real property only, or which concerns only his rights or claims to such property, the action may be revived against his heirs or devisees."

In Ex parte Gilbert, 93 Ark. 307, 124 S.W. 762, it was held that when the defendant in an action for unlawful detainer dies, the action should be revived against his heirs and not against a special administrator; and, until such revivor, there can be no adjudication concerning the land.

In Mayers v. Lark, 113 Ark. 207, 168 S.W. 1093, Ann. Cas. 1915C, 1094, where the title to land was involved, it was held that an order of revivor in the name of a special administrator was improper and that the revivor should be in the name of the heirs. See also Temple v. Culp, 105 Ark. 222, 150 S.W. 867; Dupree v. Smith, 150 Ark. 80, 233 S.W. 812; Thompson v. Lee, 174 Ark. 868, 296 S.W. 706; Blake v. Thompson, 176 Ark. 840, 4 S.W.2d 514; and Hill v. Brittain, 178 Ark. 784, 12 S.W.2d 869.

In the latter case, it was held that on defendant's death pending a suit to recover on certain notes and to foreclose a mortgage of land securing them, the action for the indebtedness survived against his administrator, and the action to subject the land to the payment of the indebtedness survived against his heirs.

In the case at bar, no revivor was sought of the action for the indebtedness, and a revivor was duly sought on the foreclosure of the mortgage against the land. The court has uniformly held that the statute is mandatory in its terms, and the revivor, to be effective, must be applied for within the time prescribed by statute. Anglin v. Cravens, 76 Ark. 122, 88 S.W. 833; Cole v. Hall, 85 Ark. 144, 107 S.W. 175; Peay v. Pulaski County, 103 Ark. 601, 148 S.W. 491; and Bank of Des Arc v. Moody, 110 Ark. 39, 161 S.W. 134.

Under § 1065 of the Digest, an order to revive an action against the representatives or successor of a defendant should not be made without the consent of such representatives or successor, unless in one year from the time it could have been made, since the power to revive without consent ceases at the time limited by this statute and, since no revivor was sought on the action on the notes, and since the revivor was sought only to...