Ward v. Sturdivant

• Decision Date: 07 November 1910
• Citation: 132 S.W. 204,96 Ark. 434
• Parties: WARD v. STURDIVANT
• Court: Arkansas Supreme Court

132 S.W. 204

96 Ark. 434

WARD v. STURDIVANT

Supreme Court of Arkansas

November 7, 1910

Appeal from Howard Chancery Court; James D. Shaver, Chancellor affirmed.

Decree affirmed.

Sain & Sain and T. D. Crawford, for appellant.

All the disputed facts in this case are settled by the court's decree in favor of appellant. That it erred in its findings of law appears from the findings of fact. The judgment of revivor upon the scire facias was as effective as an adjudication as other judgments, and can not be collaterally avoided for any mere error or irregularity. 2 Freeman on Judgments, § 448; 43 S.C. 440; 1 Edw. Ch. (N. Y.), 497; 35 Cyc. 1159. On a collateral attack, it will be presumed that plaintiff had authority to revive the judgment. Since in his final settlement as administrator appellant was charged with the amount of the judgment, he was thereby subrogated to all the rights of the estate in said judgment. If it was error to revive it in the name of B. Ward, administrator, it was not prejudicial. He was entitled to have the judgment revived. 43 Ark. 238; 51 Ark. 287; 16 La.Ann. 108, 79 Am Dec. 568; 2 Rawle, 128; 19 Am. Dec. 629; 4 S.E. 148. Kirby's Digest, §§ 5999, 6001; 92 N.W. 597-9; 2 Black, Judgments, § 951; 69 Am. St. (Mont.), 698; 74 F 702; 1 Hill (N. Y.) 339; 164 Pa.St. 87; 11 Ia. 148; 94 N.C 265. No formal assignment of the judgment from Ward, administrator, to Ward, individually, was necessary. He is in the same attitude as if he had paid debts of the estate with his own means. Sheldon on Subrogation, § 202; 3 Johns. Ch. 312. The doctrine of laches does not apply here. Laches is an equitable defense, the right to plead or take advantage of which is confined to claims for purely equitable remedies. 89 Ark. 23.

W. C. Rodgers, for appellee.

1. In all equity cases the trial here is de novo. 73 Ark. 187; 75 Ark. 72; 76 Ark. 153; 84 Ark. 172. And if the decree below was correct, it is immaterial what reasons were given in the finding of facts. 49 Ark. 20; 73 Ark. 418; 75 Ark. 107; 79 Ark. 594; 85 Ark. 1; 12 Utah 104; 52 Miss. 200; 15 Wis. 50. It was the duty of appellant's counsel to bring into the record all the evidence and to abstract it as well, if they would show error in the decree. 92 Ark. 622; 80 Ark. 259; 89 Ark. 249. Failing in this, the presumption is in favor of the correctness of the judgment. 87 Ark. 368; 82 Ark. 547; 129 S.W. 793; 90 Ark. 393; 81 Ark. 66.

2. "The right of subrogation is purely equitable; it can be enforced only in equity, and the remedy is subject to all the rules governing the enforcement of equities." 82 Ark. 407; 96 U.S. 659. No one can claim its benefits unless he asks it in his bill and states facts entitling him to the remedy. 112 U.S. 423. Since a court of chancery may impose terms as a condition of decreeing the right of subrogation, it is not unreasonable for the court to require of the person asking the relief to be diligent. 55 Ark. 85. A debt paid by an administrator is not assigned to him, but extinguished, and he has no right of subrogation to the rights of the original creditor. 3 Grant Cas. (Pa.) 192; 7 Watts (Pa.) 353.

FRAUENTHAL J. KIRBY, J., not participating.

OPINION

FRAUENTHAL, J.

This was an action instituted by the appellee to restrain the sheriff of Howard County from executing to the appellant, Bascom Ward, a deed to land sold under an execution issued upon an alleged void judgment claimed to be owned by said Ward. In his complaint appellee alleged that on February 18, 1895, the said Ward as the administrator of the estate of Susan Jones, deceased, recovered judgment against him before a justice of the peace of Howard County for $ 50, and that in 1905 said Ward as such administrator sued out of the circuit court of said county a writ of scire facias to revive said judgment, and that on February 16, 1905, said circuit court adjudged a revival thereof. He alleged that the administration of the estate of Susan Jones was finally closed in 1902, and that said Ward was not administrator of said estate at the time said scire facias was sued out to revive said judgment nor at any time thereafter. He further alleged that on December 23, 1908, said Ward in his individual capacity and without right sued out an execution in his own name on said judgment of revival, which was levied by said sheriff on land of appellee, which was thereunder sold to said Ward, and a certificate of purchase executed to him therefor. He alleged that said judgment of revival was void; and that, if it was valid, the judgment was the property of said estate and not of Ward, and that the execution issued thereon in the name of Ward individually was void. He further alleged that the land was his homestead, and was exempt from seizure or sale under said execution.

In their answer the appellants denied that the land was the homestead of appellee, and alleged that said Ward became the equitable owner of said judgment by reason of the fact that in his final settlement as administrator of said estate he was charged with said judgment.

The judgment rendered by the circuit court upon said scire facias to revive was as follows:

"B. Ward, Administrator, v. J. B. Sturdivant; Scire Facias to Revive Judgment.

"On this day comes the plaintiff, by his attorney, and presents and files in open court a writ of scire facias to revive a judgment rendered against J. B. Sturdivant on November 30, 1901, in this court in favor of B. Ward, as administrator, for the sum of $ 50, which judgment has been in no wise reversed, annulled, set aside or satisfied, and, the defendant having accepted service of said scire facias upon him as is shown by his indorsement upon same and the defendant failing to appear herein and show cause why the judgment should not be revived against him, it is therefore considered, ordered and adjudged by the court that the judgment rendered in the justice of the peace court on the 18th day of February, 1895, against J. B. Sturdivant, in favor of B. Ward, administrator, for the sum of $ 50 be and the same is hereby revived and put in full force and effect."

The order of the probate court made upon the settlement of said Ward as administrator of the estate of Susan Jones, and by virtue of which he claims that the original judgment was charged to him was as follows:

"Estate Susan E. Jones, Deceased; B. Ward, Administrator.

"On this day proceeded to examine said settlement filed herein by B. Ward, administrator, and the exceptions to same by J. J. Nelson, guardian of Bettie Jones, insane, and the court, having heard the argument of counsel and being sufficiently advised, doth sustain said exceptions, in so far as pertains to the claim of F. Revell for $ 6, which is disallowed, and the claim of John Marshall for $ 104.28, which is disallowed for $ 40, and that B. Ward, administrator, be charged $ 50 for rent of 1894, which will leave the estate due the administrator 39-100 dollars. And it is further ordered that the rent for 1895, $ 50, be turned over to the clerk of the court, who will appropriate same to paying the legal expenses of said estate, and from the remainder, if any, to pay B. Ward for taxes of 1894, paid by said estate and to redeem land of said estate forfeited for taxes. And the said B. Ward and his bondsmen are released from all liability to said estate."

The cause was heard by the chancery court upon the depositions of a number of witnesses and the above judgment of revival and said order of the probate court. The chancery court found that said Ward as administrator of the estate of Susan Jones, deceased, recovered judgment against appellee for $ 50 on February 18, 1895, and that the judgment was revived by the circuit court on February 16, 1905, but that at the time the writ of scire facias to revive said judgment was sued out in the circuit court and said judgment of revival rendered the administration of said estate was closed by order of the probate court, and that said Ward was not then administrator of said estate. It found that appellee was not entitled to claim the land as a homestead. It further found "that said Ward was entitled to subrogation to the rights of the estate of Susan Jones to realize the said sum of $ 50 from the plaintiff herein, J. B. Sturdivant, but finds also that the right accrued in May, 1895, and that the defendant, Ward, has lost the right to claim subrogation by reason of his laches and delays without any excuse therefor being shown." The court thereupon entered a decree restraining the execution of a deed and any further proceedings under the sale of said land made by virtue of the execution issued on said judgment.

It is urged by counsel for appellants that all of the disputed questions of fact in this case are settled by the findings of facts made by the chancellor, and that the only question for this court to determine upon this appeal is whether or not the chancellor erred in his conclusions of law. We do not think this contention is correct. Upon the appeal of a case in equity to this court the cause is heard de novo. The appeal brings up the whole case, and this court passes upon the record as to the facts as well as the law. The findings of fact by the chancellor are not conclusive upon appeal. His findings are persuasive only, and this court reviews the evidence as in a case upon trial de novo. And if, upon an examination of the whole case, it appears that the decree of the chancellor is correct, it will not be reversed, although it is based upon an erroneous conclusion of fact. Kelly v. Carter, 55 Ark. 112, 17 S.W. 706; Niagara Fire Insurance Company v. Boon, 76 Ark. 153, 88 S.W. 915; Parker v. Wells, 84 Ark. 172, 105 S.W. 75; Fordyce Lumber Company v. Wallace, 85 Ark. 1, 107 S.W. 160.

This being an appeal from a...