"In
1872, in a cause then pending in chancery in the circuit
court of Hempstead county, wherein the said Wm. C. Sypert, in
propria persona, and as administrator of Francis M. Thomas
deceased, with the will annexed, and Lydia R. Sypert, were
plaintiffs, and the plaintiff in this action (then a minor),
by his guardian ad litem, and others were defendants, it was
ordered and decreed by said court that the interest of the
estate of the said Francis M. Thomas, deceased, in and to the
lands in controversy in this action, be sold for partition,
and to pay the debts of said estate, and Simon T. Sanders was
appointed as a commissioner to sell, not only the interest of
said estate, but also the interest of said Wm. C. Sypert in
said lands. At the sale, under and by virtue of said decree,
the said Wm. C. Sypert became the purchaser, and in 1873 the
said sale was confirmed by the circuit court, and a deed was
properly executed, delivered and recorded. After his
purchase, the said Wm. C. Sypert treated the lands in
controversy in all respects as his own, paying taxes, making
improvements, and executing sales, openly and above board,
and, in other words, holding the same adversely to all the
world. On the 3d day of December, 1890, he sold a portion of
the said lands to the Central Fair Association, executing a
warranty deed therefor, and holding a vendor's lien for
the purchase money, a part of which remains still unpaid. The
other defendants claim an interest in the said lands by deed
from said Wm. C. Sypert. Some of them are minors, and defend
here by guardian ad litem. It is conceded that none of the
defendants have held any of said lands long enough to have
title by adverse possession, unless their possession can be
tacked to that of Wm. C. Sypert. In other words, the statute
must have been set in motion in favor of said Wm. C. Sypert.
Wm. C. Sypert died in 1891, and Lydia R. Sypert in 1875,
about 18 years before the beginning of this suit.
"First.
The first question presented arises on the intervention of
certain probate judgment creditors of said Francis M. Thomas,
deceased, who have been granted leave to intervene in this
cause. They maintain their right to subject the land in
controversy to the payment of their probated claims. Have
they exercised such diligence as will now entitle them to
insist upon such relief? Lands in the hands of an
administrator are assets only for the payment of debts.
Before they can be sold, the personal property must first be
exhausted. (Mansfield's Digest, secs. 170, 171.) It seems
to be admitted that there was a large amount of probated
debts against said estate, and that a considerable part of
it, at least, was compromised and paid off by said Wm. C.
Sypert at from 10 to 25 cents on the dollar. The creditors
whose claims remained unsettled should have required the
administrator to account for the personal property that
should have been in his hands. They then might have proceeded
against the landed interest of the estate. They claim that
they are not barred by limitation or laches for the reason
that the lands in controversy were, at the death of said
Francis M. Thomas, deceased, his homestead, and afterwards
the homestead of his family; that, upon the marriage of his
widow to the said Wm. C. Sypert, who himself owned the
remaining one-third interest in said lands, thereafter his
(Sypert's) homestead interest was impressed, not only
upon his one-third interest, but upon the entire interest in
said land, including the two-thirds interest in said land in
controversy, and that the same was not subject to sale for
the payment of the debts of the estate of said Francis M.
Thomas, deceased, until after the death of the said Wm. C.
Sypert. The act of 1852 (Gould's Digest p. 504, secs. 29,
30) governs the homestead rights of the family of said
Francis M. Thomas, deceased. That act exempted the homestead
from sale, not exceeding 160 acres, "during the time it
shall be occupied by the widow, or child or children of any
deceased person," who was then living, entitled to the
benefits of that act. See Johnston v. Turner, 29
Ark. 280-281.
"I
hold that the words 'child or children' in said act
should be construed to mean 'minor child or minor
children.' It is not very clear, from the evidence, how
many acres the two-thirds interest of the Francis M. Thomas
estate covered at the time of his death. It must, however,
have been some 400 or 500 acres. The excess over 160 acres
could clearly have been sold to pay the debts of the said
estate over a quarter of a century ago. The homestead rights
as to all of the lands terminated on the death of the widow
and the majority of the plaintiff, both of which events
occurred over fifteen years before this action was commenced.
All of the said lands then were subject to sale to pay the
debts of said estate. The interest in said lands belonging to
the estate of said Francis M. Thomas, deceased, could not in
any case be held by said Wm. C. Sypert as a homestead against
the claims of the creditors of said estate. It was held in
Mays v. Rodgers, 37 Ark. 155 (quoting the syllabus),
"that a delay for ten years after the grant of
administration, without showing any hindrance or proper cause
for it, is unreasonable, and discharges the lien upon the
real estate." See, also, Stewart v. Smiley, 46
Ark. 373; Graves v. Pinchback, 47 Ark. 470.
"In
my opinion no sufficient excuse for the delay is shown to
exist in this case, and the rights of the interveners are
consequently barred by the lapse of time.
"2.
The next question involves the right of the plaintiff, under
the evidence in this case, to recover. I hold that Wm. C.
Sypert, having married the plaintiff's mother,
administered upon his father's estate, and received the
plaintiff into his family as one of his own children (he then
being a minor of tender years), stood, as to him, in loco
parentis. Hindman v. O'Connor, 54 Ark. 627, 639;
Gillespie v. Holland, 40 Ark. 28, 32; Million v.
Taylor, 38 Ark. 428. He was a trustee, and not permitted
to traffic and speculate in his step-son's patrimony. He
was, by law, forbidden to purchase property, and hold it for
his own benefit, where he had a duty to perform to the owner
of said property which was inconsistent with the character of
a purchaser on his own account, and for his own use.
Imboden v. Hunter, 23 Ark. 622, 626; Mock v.
Pleasants, 34 Ark. 63, 72; McNeil v. Gates, 41
Ark. 264, 269; Culberhouse v. Shirey, 42 Ark. 28;
Graves v. Pinchback, 47 Ark. 470; Woodard v.
Jaggers, 48 Ark. 248; Clements v. Cates, 49
Ark. 242, 245; Gibson v. Herriott, 55 Ark. 85, 91.
And this is true, regardless of the good faith of the
transaction. Imboden v. Hunter, 23 Ark. 622;
McGaughey v. Brown, 46 Ark. 25; Hindman v.
O'Connor, 54 Ark. 627; Gibson v. Herriott,
55 Ark. 85, 91. The fact that Wm. C. Sypert bought from the
commissioner, under a decree of court in a case brought by
himself, will not make his attitude different from that of
any other trustee purchasing property, towards the owner of
which he stands in loco parentis. See Marchbanks v.
Banks, 44 Ark. 54. I hold that this sale of Wm. C.
Sypert was voidable, not void. Town of Searcy v.
Yarnell, 47 Ark. 269; Jones v. Ark. etc. Co. 38
Ark. 17.
"Did
the statute of limitations run against the plaintiff's
cause of action prior to the commencement of this suit? It is
a general rule that the statute will not run against the
trustee of an express trust. There is, however, an exception
to that rule, equally as well established as the rule itself
that where the trustee openly renounces his trust, and holds
the trust property...
