Salinger v. Black
| Decision Date | 08 December 1900 |
| Citation | 60 S.W. 229 |
| Parties | SALINGER et al. v. BLACK et al. |
| Court | Arkansas Supreme Court |
Appeal from Monroe chancery court; John C. Hawthorne, Special Chancellor.
Action by Bena Black, as administratrix of the estate of William Black, deceased, and others, against Mittie Salinger and another, to have defendants declared trustees of certain lands for the benefit of the creditors and heirs of Saul Salinger, deceased, for an accounting of the rents and profits thereof, and for subrogation to the rights of mortgagees in the lands, and for foreclosure of the mortgages to pay claims against the estate. From a judgment in favor of plaintiffs, except as to part of the lands, both parties appeal. Affirmed in part, and reversed in part.
Manning & Lee, C. F. Greenlee, and Norton & Prewett, for plaintiffs. Jos. W. House, for defendants.
On the 21st day of August, 1883, Saul Salinger died intestate, leaving surviving him Mittie Salinger, his widow, but no children. He died seised and possessed of personal property and lands. Letters of administration were granted by the Monroe probate court to Louis Salinger and Mittie Salinger, authorizing them to administer his estate. One-half of the personal estate was set apart, by order of the probate court, to the widow as dower.
Among the lands which belonged to the estate of Saul Salinger at the time of his death were the following: The N. ½ of the S. E. ¼, and the S. E. ¼ of the S. W. ¼, and the S. ½ of the S. E. ¼, and the N. ½ of the S. W. ¼, of section 8, the S. W. ¼ of section 9, the N. E. ¼ of the N. W. ¼, and the N. E. ¼ and the N. ½ of the S. E. ¼, of section 17, in township 4 N., and in range 2 W. These lands were incumbered by mortgages, which were executed by Saul Salinger, in his lifetime, to Furstenheim & Wellford, to secure a debt he owed to them. Mrs. Salinger joined in the execution of the mortgages, and relinquished her dower in the lands. On the 14th of April, 1884, Mrs. Salinger and her co-administrator filed a petition in the probate court of Monroe county, representing that it would be to the interest of the estate of Saul Salinger, deceased, and not to the injury of the creditors, to use the general assets of the estate to redeem these lands. On the same day the petition was granted by the court, and the administrator and administratrix were authorized and directed to pay the debt secured by the mortgages out of the general assets of the estate; and they thereafter, at different times, paid in discharge of the debt, out of the assets of the estate, no part of which constituted the dower of the widow, the sum of $31,859.72. The debt so paid had been previously probated against the estate. At the time the order to redeem was made the debts other than the mortgage debt, which had been probated against the estate, amounted to only $968, and the estate appeared to be solvent.
On the 14th day of November, 1885, commissioners appointed by the Monroe probate court set apart and allotted to Mrs. Salinger, as a part of her dower, the following lands: The S. E. ¼ and the S. E. ¼ of the S. W. ¼, and the N. ½ of the S. W. ¼, of section 8, the S. W. ¼ of section 9, and the N. E. ¼ of the N. E. ¼ of section 17, in township 4 N., and in range 2 W., which were a part of the lands incumbered by the mortgages and redeemed as before stated. They reported their proceedings to the probate court, and it approved their action.
On the 1st day of June, 1887, the administrator and administratrix sold, under an order of the probate court, the following, among other, lands: The N. W. ¼ of the N. W. ¼, and the N. E. ¼ of the N. W. ¼, and the S. ½ of the N. E. ¼, and the N. ½ of the S. E. ¼, of section 17, in township 4 N., and in range 2 W., and I. T. Andrews purchased them, he being the highest bidder. On the 18th day of April, 1890, the administrator and administratrix, under the same authority, sold, at vendue, to the same purchaser, the land assigned to the widow, described above, subject to her dower. Both sales were reported to, and confirmed by, the probate court; the former at its October term, 1887, and the latter at its April term, 1891. The administrators conveyed to Andrews the lands sold to him on the 1st of June, 1887, by deed bearing date the 1st of March, 1888, which has been recorded. They also conveyed to him the reversionary interest in lands, which he purchased on the 18th of April, 1890. On the 30th of May, 1888, Andrews conveyed to Mrs. Salinger the lands purchased by him on the 1st of June, 1887, receiving for the same $300 more than it cost him. She filed her deed for record on the 19th of June, 1888, and immediately after her purchase took possession of the land, and held it adversely to all persons, and cultivated and improved it as her own.
The administrators filed as many as six annual accounts current, showing their debits to the estate and the credits to which they are entitled. The administration of the estate is still open.
On the 27th of October, 1893, certain creditors of the estate and the heirs of Saul Salinger, deceased, commenced a suit against Mittie Salinger (Louis Salinger having died) and I. T. Andrews, alleging that the purchases of real estate by Andrews on the 1st day of June, 1887, and on the 18th of April, 1890, were made for the use and benefit of Mrs. Salinger, and asked that Mrs. Salinger and Andrews "be decreed to hold said lands in trust for the creditors and heirs of Saul Salinger, deceased; that an accounting be had of rents and profits to the end that the debts of said estate may be paid, and distribution of any surplus made to heirs." In May, 1894, they filed an amendment to their complaint, in which they alleged the foregoing facts as to the mortgage of land to Furstenheim & Wellford, the redemption of the same, and the assignment of dower to widow in a part of the same, and asked that they be subrogated to the rights of Furstenheim & Wellford under the mortgages, and for the foreclosure of the same, to the extent it may be necessary to pay the claims probated against said estate. They filed many other amendments, alleging that the settlements filed contained many errors, and asked that the same be surcharged and falsified. The defendants answered, and denied that Andrews purchased the real estate for the use and benefit of Mrs. Salinger, and alleged that he purchased the same in good faith for himself, and pleaded the five and seven years statutes of limitation in bar of the action.
After hearing the evidence adduced at the hearing, the court found that the lands sold on the 1st of June, 1887, were purchased by Andrews for Mrs. Salinger, and that she holds the title to the same for the benefit of her intestate's estate; that the purchase of real estate by Andrews at the sale on the 18th of April, 1890, was made in good faith and valid; that Mrs. Salinger was not entitled to dower in the lands mortgaged to Furstenheim & Wellford, and is responsible for the rents she has received for the same; and that the mortgages in favor of them be foreclosed for the benefit of the plaintiffs, and that the life estate assigned to the widow in the lands thereby incumbered as dower be sold to satisfy the same; and decreed that the creditors of the estate of Saul Salinger, deceased, be subrogated to the rights of Furstenheim & Wellford under the mortgages in their favor; and that the lands purchased by Andrews at the sale on the 1st of June, 1887, and the life estate set apart to Mrs. Salinger as dower in the lands mortgaged to Furstenheim & Wellford, be sold at public sale to pay the unpaid debts probated against said estate, and for other purposes; and the defendants appealed; and from so much of the decree as found the purchase of the reversionary interest in the lands by Andrews at the sale on the 18th of April, 1890, to be in good faith and valid, the plaintiffs appealed.
It appears from the allegations in the complaint of the plaintiffs that Mrs. Salinger has been in the possession of the lands sold on the 1st of June, 1887, and purchased by Andrews, at all times since the sale, controlling the same and enjoying the profits thereof; and, although it is not expressly alleged, it clearly appears from the complaint that she has been in the open and adverse possession of the same for more than five years before the commencement of this suit. The defendants having pleaded the five-years statute of limitation, it devolved upon the plaintiffs to prove that their suit came within some exception to the general rule adopted by the statute. They claim they were prevented from suing at an earlier day by the fraud of the defendants. To maintain their suit upon that ground, they should have shown by evidence how they came to be so long ignorant of their rights and the means used by the defendants to fraudulently keep them in ignorance, and how and when they first came to a knowledge of the fact, if it be a fact, that the lands were purchased by Andrews for Mrs. Salinger. Having failed to do this, they are barred by the statute pleaded from maintaining this suit. McGaughey v. Brown, 46 Ark. 25; 2 Greenl. Ev. (16th Ed.) § 448, and cases cited; 2 Wood, Lim. Act. (2d Ed.) § 276, and cases cited.
But the plaintiffs contend that the five-years statute of limitation has no application to this case. What was said in Hindman v. O'Connor, 54 Ark. 641, 16 S. W. 1056, 13 L. R. A. 497, in response to a like contention, may be appropriately said in response to plaintiffs' contention in this case. In the case cited this court said: ...
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