Storthz v. Sanger

• Decision Date: 05 May 1913
• Citation: 156 S.W. 1020,108 Ark. 154
• Parties: STORTHZ v. SANGER
• Court: Arkansas Supreme Court

156 S.W. 1020

108 Ark. 154

STORTHZ v. SANGER

Supreme Court of Arkansas

May 5, 1913

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor affirmed.

Decree affirmed.

Dan W Jones, for appellant.

1. The order and judgment of the probate court authorizing and approving the lease made by George E. Dodge as guardian of Julia Robbins to Isaac and Joseph Wolf, which provides that at the end of said lease the lessees should have the option to purchase the lot at the appraised value of same, was not void, but merely voidable when directly attacked. It is not subject to collateral attack. 1 Herman on Estoppel, § 351; Const. Ark. 1874, art. 7, § 34; 44 Ark. 270; 47 Ark. 419; 41 Ark. 426; 29 Ark. 526; 31 Ark. 183; 33 Ark. 298; 11 Ark. 31; 13 Ark. 35; Id. 505; 14 Ark. 568; 18 Ark. 63; Id. 295; 19 Ark. 485; 20 Ark. 78; 21 Ark 364; 23 Ark. 129; 11 Ark. 552, 531, 532, et seq.; 52 Ark. 7; Id. 341-2-3; 66 Ark. 416; 73 Ark. 612; 70 Ark. 88.

2. Plaintiffs by their acquiescence for fifteen years are, under the provisions of the lease, estopped from denying the validity thereof. 5 Ark. 424, 429; 73 Ark. 614-616; 55 Ark 85; 64 Ark. 345.

3. The court erred in ordering a sale of the lot, including the brick building thereon, by a commissioner appointed by the court, contrary to the provisions of the lease. The lease is a contract in entirety, and its provisions can not be changed nor part of them accepted and others rejected.

Ratcliffe & Ratcliffe and Bradshaw, Rhoton & Helm, for appellees.

1. It is not contended that the lease is void, but only that clause which provides that "lessees shall have the option at the expiration of this lease to purchase said lot at its appraised cash value," the same being an attempt to authorize the sale of lands belonging to a non compos mentis in a manner not authorized by law. It is void in this respect. 40 Cyc. 214-16-17; 67 Ark. 325-29; 108 U.S. 143, 2 Addison, Contracts, 814, and note; 21 Cyc. 120, subdiv. 6; 53 Ark. 37; 45 Ark. 41; 33 Ark. 425; 98 Ark. 63-67.

Where a probate court acts beyond its jurisdictional limits, such acts or orders and judgments are void. In this case the probate court in approving and authorizing the clause in question acted beyond its jurisdictional limits and its act is void and subject to collateral attack. 32 Ark. 97; 33 Ark. 490; 47 Ark. 460; Kirby's Dig., § 3793; 23 Cyc. 1070, "E;" 74 Ark. 81, 87; 48 Ark. 151, 156; 90 Ark. 195. See also 32 Ark. 97; 47 Ark. 460; 95 Ark. 164; 54 Ark. 480; 69 Ark. 539; 74 Ark. 149; 99 Ark. 339.

2. The doctrine of estoppel has no application here. Appellees received the rent as they had the right to do, but did nothing more. The provision insisted upon by appellant was void upon its face and appellees had the right to so regard it, and no action was necessary on their part to raise any question as to its validity. There is no duty or necessity for resorting to legal or equitable remedies to establish a right until some one threatens to destroy or impair it, or asserts an adverse right. 88 Ark. 395-404; 70 Ark. 256; 88 Ark. 478-481; 82 Ark. 367; 145 U.S. 368; 99 Ark. 260-3; 2 Pomeroy, Eq. Jur., § 804; 97 Ark. 43, 49.

Storthz is a cotenant of appellees, and as such, limitation and estoppel do not apply. 61 Ark. 527; 42 Ark. 289.

The order authorizing a lessee to become a purchaser could only be an executory contract to convey, and the probate court had no jurisdiction to authorize any such contract. 38 Ark. 31; Kirby's Dig., § 5209; Id., § 4024-4028; 66 Ark. 437; 33 Ark. 425; 98 Ark. 63.

3. Under the circumstances the chancery court had jurisdiction to order the sale of the lot, including the building thereon, and, having found that there could be no partition in kind and that it was to the best interest of all the parties to sell the whole property, was warranted in so decreeing. 33 Ark. 376, 386; 77 Ark. 317, 319; 98 Ark. 151.

OPINION

MCCULLOCH, C. J.

The subject-matter of this litigation is a lot, forty-two feet in width, fronting on Main street in the city of Little Rock, on which is situated a brick store building. Appellees owned an undivided two-fifths of the ground by inheritance from Julia Robbins, the former owner, who died intestate in the year 1897. Appellant owns the other undivided three-fifths interest by purchase from the other heirs of Julia Robbins and he is also the owner of the building on the lot, which was constructed under a lease contract whereby the ownership of the building was reserved in the lessee who constructed it.

Julia Robbins was adjudged by the probate court of Pulaski County to be a person of unsound mind, and George E. Dodge was duly appointed guardian of her person and estate. Dodge, as such guardian, entered into a contract with Isaac and Joseph Wolf, whereby he leased said lot to them for the term of twenty years from September 1, 1892, the lessees to pay a rental price of $ 1,200 per annum and pay all taxes assessed during the term. The contract contained the following stipulation:

"Said lessees shall have the option at the expiration of this lease to purchase said lot at its appraised cash value, said value to be determined by appraisement to be made by two competent disinterested persons, one of which shall be selected by each of the parties hereto, and in case these two can not agree, they shall select a third disinterested person to decide, and such decision shall be final and binding on all parties, and upon payment of the price of said lot so ascertained, a good and sufficient deed shall be executed to said lessees by said lessor, or his successors in office, conveying absolutely in fee simple the said lot to the said lessees. At the expiration of this lease, if the lessees do not exercise their right to purchase the ground, the lessor shall pay to the lessees in cash the then value of the building and the improvements on said ground, such values to be ascertained in the same manner as is hereinbefore provided for ascertaining the value of the ground, and thereupon said buildings and improvements shall become the property of the lessor."

This contract appears to have been executed as a renewal of a former contract between the same parties under which the building on the lot had been constructed by the lessees.

An order of the probate court was duly made and entered authorizing said guardian to execute said contract.

The lessees named in the contract assigned the lease to Bertha Ottenheimer, who, on July 31, 1911, assigned the same to appellant, who had theretofore become the owner of an undivided three-fifths interest in the land by purchase from the heirs of Julia Robbins.

Prior to the expiration of the lease appellant notified appellees of his intention to exercise the option to purchase said property under the terms of the contract, and appellees, in response, notified him of their refusal to sell and convey their interest in the property.

After the expiration of the lease appellees instituted this action against appellant in the chancery court of Pulaski County praying that "on the adjustment of the amounts to be paid by plaintiffs for said building and the title vested in them, respectively, that the said lot and premises be partitioned among the several owners as their interest may appear, and if an equitable partition can not be made in kind, that the said property be sold free of all claims, present, future and contingent, and the proceeds equitably distributed."

Appellant demurred to the complaint, but the demurrer was overruled, and he then answered. Among other things he alleged that appellees inherited their interest in the property on the death of Julia Robbins, which was about fifteen years before the expiration of the lease, and thereafter accepted their part of the rental price of the building, thus ratifying the terms of the contract, and that they are estopped to question the power of the guardian to enter into the contract giving an option to the lessees to purchase.

The cause was tried upon an agreed statement of facts, and the court rendered a decree in accordance with the prayer of the complaint, ordering the property sold, including the building, so that the proceeds could be distributed according to the rights of the parties.

The court declared that part of the contract giving the lessees the option to purchase the lot at the expiration of the specified term to be void and unenforceable; and the principal question presented to us for decision is whether it was within the jurisdiction of the probate court to authorize or approve such a contract.

It is very clear that this was not within the jurisdiction of the probate court, which is confined, with respect to control of the property of infants and insane persons, to such limits as are prescribed by the statute. In...