Wheeler & Motter Mercantile Company v. Knox

• Decision Date: 21 October 1918
• Docket Number: 185
• Citation: 206 S.W. 46,136 Ark. 95
• Parties: WHEELER & MOTTER MERCANTILE COMPANY v. KNOX
• Court: Arkansas Supreme Court

206 S.W. 46

136 Ark. 95

WHEELER & MOTTER MERCANTILE COMPANY v. KNOX

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, for appellant.

1. The real estate descends to the heir free from any indebtedness to the ancestor, subject only to the debts of the estate and dower and homestead. Kirby's Dig., § 2636 to 2657; 15 Ark. 583; 72 Ark. 272; 34 Id. 391; 74 Id. 149; 49 Id. 87; 15 A. & E. Ann. Cases 567; 11 Rul. Case Law, § 163; 18 Cyc. 180; 14 Id. 102-110. The rule is well settled in this State.

2. See also 46 Ark. 373; 49 Id. 87; 117 Id. 418; 234 U.S. 615; 38 Id. 492. As to rulings in other States see 4 L. R. A. (N. S.) 189, and case note; 7 A. & E Ann. Cas. 563; L. R. A. 1915, A, p. 1179.

3. The debt was barred by limitation. 14 A. 201; 74 Me. 483; 136 Mass. 138; 9 R. C. L. 110, § 109; 7 Ann. Cas., A. & E. 565; 98 N.W. 701; 2 Person (Pa.) 473; 25 S.C. 293; 120 Ill.App. 92.

Taylor, Jones & Taylor and Bridges, Wooldridge & Wooldridge, for appellees.

1. The debt due the ancestor should be deducted or off-set. 53 Ark. 137; 9 R. C. L., § 108; 66 S.E. 675-8.

2. The debt is not barred. 57 S.E. 623. The debt should be retained or off-set. 37 L. R. A. 98; 18 Id. 158; 39 Id. 686; 22 Id. 177. The great weight of authority is against Marvin & Bowlby. 4 L. R. A. (N. S.) 189. See authorities cited in note to case; L. R. A. 1915, A, 1184.

A. R. Cooper, for appellant in reply.

Cites 37 L. R. A. 98; 25 S.C. 293; 43 N.J.Eq. 206; 153 Mich. 310; 163 Id. 130; 12 Heisk. 245; 10 A. 240; 2 Barb. Chy. 534; 20 S.C. 475; 17 Mass. 93; 7 Allen, 192; 17 Mass. 93; 19 Pick. 167; 26 S.W. 1015; 9 Id. 299; 101 Ind. 172; 57 S.E. 623; 104 Ala. 493; 19 L. R. A. 1915a, p. 1184.

OPINION

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 22nd 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; and 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 off-set, 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 Kelly's Heirs v. McGuire, 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 include such debts in the sections making advancements a charge. By the inclusion of one, the exclusion of the other is logically inferable. It is insisted by appellee that, notwithstanding the repeated declarations of this court that an absolute title to an intestate's real estate descends to the heir subject to the intestate's debts, dower, homestead rights and advancements, it descends subject also to the general indebtedness of the heir to the intestate. The case of Wilson v. Slaughter, 53 Ark. 137, 13 S.W. 515, is cited as decisive of their contention. The facts in that case are entirely different from the facts in the instant case. In that case, Edwin Jones mortgaged his land to secure his brother John's indebtedness. Edwin died and John inherited a one-third interest in the land. The mortgage was foreclosed under the power and paid out of the proceeds of the sale. There was a balance in the trustee's hands after paying the mortgage, and Philander Littell, who purchased John's interest in the estate with actual knowledge of all the facts, claimed one-third of it. The court held that John was not entitled to it as against his co-heirs, because his interest in the lands had been appropriated to the payment of his own debt. The case stood as if Jones himself had mortgaged his undivided interest in the land to secure his indebtedness. The purchaser of Jones' interest, having bought with actual knowledge of all the facts, obtained no greater interest than John had. In the instant case, A. S. Knox was in no sense a mortgagor of his own undivided interest in the real estate. It was not pledged in the lifetime of the intestate to secure A. S. Knox's indebtedness. No part of the land was appropriated to the payment of A. S. Knox's debts prior to the...