Martin v. Conner

Kirby, J., (after stating the facts). It is insisted, first, that the court erred in declaring the administrator’s sale of the lands void, and that, in any event, appellee is barred from claiming them by the statute of limitations applying to judicial sales. - „ The lands were acquired by James Martin from the Government by patent in 1837, and'he resided with his family upon them at the time of his death in 1862. He left surviving him his widow, Ellen C., who afterwards married Davis West, and some minor children, two of whom, J. F. and James, Jr., were twenty and eighteen years of age respectively at the time A. W. and J. N. Martin purchased the lands at the administrator’s sale for the payment of debts. The chancellor found, and the agreed statement of facts shows, that some part of the land constituted the homestead of James Martin at the time of his death. It also appears that the chancery court in October, 1870, in a suit wherein V. E. Conner et al. were plaintiffs, and Ellen C. Martin, as widow of James Martin, deceased, and administrator of Ms estate, and said A. W. and J. N. were defendants, partitioned the lands of said decedent’s estate among all his heirs and allotted these lands to the widow as dower. In Chambers v. Sallie, Admr., 29 Ark. 412, the court, in discussing the homestead law of 1852, said: “The legal effect of the act, as held -by this court in Norris et al. v. Kidd, 28 Ark. 485, is to create no new estate, but to protect the occupant of the land in the use and occupancy of the land so set apart as a homestead during the time of such occupancy, but if abandoned by removal or death, leaving neither wife nor children to succeed to his rights, the rights of the judgment creditor will be fully restored.” (1-2) The abandonment of the homestead 'by the mother could in no wise affect the homestead rights of the minor children. Booth v. Goodwin, 29 Ark. 635. “The effect of the homestead act was to suspend the rights of the creditor until the child or children became of age and are presumed to be capable of taking care of and supporting themselves, at which time, and not before, the rights of creditors to satisfaction out of the estate may be asserted.” Booth v. Goodwin, supra. (3) The sale by the administrator de bonis non, for the payment of the debts, of the land, a portion of which constituted the homestead of the decedent, during the minority of two of his children, was void, therefore, and had no effect to convey the title to the purchasers thereat, who, of course, conveyed none to Ellen C. West by their warranty deed in 1890. (4) It is true these lands were assigned or allotted to the widow as dower, but her taMng of them as such was not necessarily inconsistent with her homestead right, and no act of hens, as already said, could operate as an abandonment of the homestead that would affect the rights of the minors. The law provides that the widow shall remain in .and possess the chief dwelling house of her deceased husband, together with the farm thereto attached until her dower is assigned, and that in the assignment of dower it shall he the duty of the commissioner to so lay off the dower in the lands that the usual dwelling of the husband and family shall be included therein. She can, of course, have the dower laid off and allotted on any part of the lands of the deceased, whether it includes the dwelling or not. Sections 2704-6, Kirby’s Digest; Horton v. Hilliard, 58 Ark. 298. (5-6) The fact that appellee is a married woman would not relieve her from the .bar of the five years’ statute of limitations relating to judicial sales, if it was applicable to this case, since there is no saving clause to married women therein. Her right of action could not have accrued against the purchasers or their assigns until the coming of age of the minors; within the authority of Griffin v. Dunn, 79 Ark. 408, she would still have had two years of the statutory period allowing a reasonable opportunity in which to assert it; but notwithstanding this, the said sale occurred after the allotment of the lands to the widow as dower and although it was inoperative so far as her dower was concerned (Shell v. Young, 78 Ark. 481) still appellee could not have asserted her right to the lands until the death of the doweress, which occurred in 1904, long after the five years allowed persons by the statute from the date of the judicial sale in which to bring actions against the purchasers or their assigns expired. ' Her right not having accrued- within the five years from the date of said sale, that statute has no application. Kessinger v. Wilson, 53 Ark. 400; Griffin v. Dunn, supra. Being a married woman at and from the time of her father’s death to now, she was not bound to assert her right sooner, there being a saving clause for married women in the seven years’ -statute of limitations, section 5056. She was entitled' to one-fourth of the lands by inheritance from her father as the chancellor found. There being no error in the record, the decree is affirmed.