Wheeler & Motter Mercantile Co. v. Knox

• Citation: 206 S.W. 46
• Decision Date: 21 October 1918
• Docket Number: (No. 185.)
• Parties: WHEELER & MOTTER MERCANTILE CO. et al. v. KNOX et al.
• Court: Supreme Court of Arkansas

206 S.W. 46

WHEELER & MOTTER MERCANTILE CO. et al. v. KNOX et al.

(No. 185.)

Supreme Court of Arkansas.

October 21, 1918.

Appeal from Jefferson Chancery Court; John M. Elliott, Chancellor.

Suit by Richard M. Knox and others against the Wheeler & Motter Mercantile Company and others. From an adverse decree, defendants appeal. Reversed and remanded.

A. R. Cooper, of Pine Bluff, for appellants. Taylor, Jones & Taylor and Bridges, Wooldridge & Wooldridge, all of Pine Bluff, for appellees.

HUMPHREYS, J.

Appellant Wheeler & Motter Mercantile Company obtained a judgment in the Jefferson circuit court against A. S. Knox on the 10th day of October, 1913, for $843.97 and costs. On the 22d day of July, 1916, appellant procured an execution and had it levied upon certain real estate in said county inherited by A. S. Knox from his father, R. M. Knox. Appellees, the widow and all the heirs of R. M. Knox, deceased, except A. S. Knox, instituted this suit against appellants in the Jefferson chancery court, seeking to enjoin further proceedings under the execution aforesaid, or the enforcement of the judgment obtained by appellant Mercantile Company against said Knox against the lands in question. It was alleged that A. S. Knox was indebted to his father, R. M. Knox, at the time of his death, in the sum of $3,250 by way of advancement, evidenced by a promissory note, and $6,996 on open account, together with $1,054 interest, making a total indebtedness of the said A. S. Knox to his father at the time of his death in the sum of $11,300; that the value of the real estate owned by R. M. Knox at the time of his death was $41,609.28, and that the value of the interest of A. S. Knox in said real estate was $4,633.23; that the indebtedness of A. S. Knox to his father was largely in excess of his interest in said real estate; that on the ____ day of ____, 19__, a decree in partition of said lands was entered in the Jefferson chancery court between the widow and all of said heirs, in which it was ascertained and determined that Albert S. Knox had received an advancement from his deceased father and was indebted to the estate in a sum in excess of his share of said estate, and that no portion of said real estate should be allotted to him, and the land was partitioned amongst the other heirs according to their several interests ascertained by the court; that F. G. Bridges had been appointed administrator of the estate of R. M. Knox, deceased, and on July 16, 1915, the said A. S. Knox conveyed all of his interest in said real estate to F. G. Bridges, administrator, to secure his indebtedness to said estate, reciting in the instrument the various items of indebtedness he owed his father at the time of his death.

Appellants denied in their separate answers that A. S. Knox was so indebted to his father at the time of his death; that the advancements and indebtedness in the aggregate exceeded the value of the share or interest of said A. S. Knox in the real estate of his father; charged that the indebtedness, if any existed, consisted of moneys loaned to A. S. Knox or paid to third parties for his benefit; and pleaded the statute of limitations in bar thereof. The cause was submitted to the court upon the pleadings and an agreed statement of facts, which, in substance, agreed in reference to the advancement and indebtedness with the allegations contained in the complaint. Under our view of the law, it is unnecessary to set out verbatim the agreed statement of facts. It would only serve to consume unnecessary space.

The chancellor ruled that a one-ninth interest in said real estate descended to A. S. Knox, subject not only to the advancement made by R. M. Knox, but also subject to the indebtedness of A. S. Knox to R. M. Knox at the time of his death, and that the decree of partition divesting him of his apparent interest, and vesting same in the other heirs by way of equitable offset, and the subsequent conveyance of his interest in said lands to the administrator of the estate, took precedence over the judgment lien of appellant. In keeping with this ruling, the court rendered a decree perpetually enjoining appellants from proceeding under the execution or judgment and quieting the title to said real estate in the appellees. From this decree an appeal has been prosecuted to this court.

The question presented on appeal is whether or not land descends upon the death of the owner to the heir, free of any indebtedness from the heir to the owner, or whether it descends to him subject to his indebtedness to the owner. Section 2636 of Kirby's Digest is, in part, as follows:

"When any person shall die, having title to any real estate of inheritance, or personal estate, not disposed of, nor otherwise limited by marriage settlement, and shall be intestate as to such estate, it shall descend and be distributed, in parcenary, to his kindred, male and female, subject to the payment of his debts and the widow's dower, in the following manner: First. To children, or their descendants, in equal parts. * * *"

In the early case of Kelley's Heirs et al. v. McGuire and Wife et al., 15 Ark. 555, this court held that the effect of the section just quoted was to vest an absolute estate of inheritance in lands in the person who takes, subject to the indebtedness of the intestate and the rights of dower and homestead. This construction of the statute has been persistently adhered to in later cases. Sisk v. Almon, 34 Ark. 391; Chowning v. Stanfield, 49 Ark. 87, 4 S. W. 276; Hopson v. Oxford, 72 Ark. 272, 79 S. W. 1051; State Fair Association v. Terry, 74 Ark. 149, 85 S. W. 87.

Sections 2650, 2651, and 2652 of Kirby's Digest make advancements, as defined in those sections, a charge upon the heir's interest in the intestate's real estate. If the Legislature had intended to make an heir's ordinary debt to his intestate a charge upon the heir's interest in the real estate, it would have been easy to...