Duncan v. Liddle

Kirby, J., (after stating the facts). It is properly contended that this case is 'controlled by Watson v. Henderson, 98 Ark. 63. It was there held that the chancery court was without jurisdiction to order the sale of the lands of a minor for reinvestment and the proceedings of the St. Francis chancery court ordering the sale of the lands herein being without jurisdiction, its decree was void and plaintiffs acquired no title to the lands through the deed of its commissioner conveying same in accordance with the proceedings and decree therefor. It is insisted for appellees that under the original conveyance from Elijah Duncan, the father of appellants to them and their mother, they acquired only a contingent remainder in the lands and that the chancery court had jurisdiction to make the sale within the doctrine announced in Bedford v. Bedford, 105 Ark. 587, It is there held that courts of equity have jurisdiction to order the sale of contingent remainders for reinvestment, notwithstanding one of the remaindermen is an infant ■and that its jurisdiction is inherent and not derived from or conferred by statute. Under the 'conveyance from Elijah Duncan the plaintiffs John Duncan and James Duncan acquired a fee simple estate in the lands conveyed as tenants in common of an undivided one-third each and the mother’s one-third contingent upon the termination of her estate by death or remarriage and subject to be diminished by the birth of other children. The possibility of further issue of the marriage was determined upon the death of Elijah Duncan and the estate of the mother upon her remarriage long before suit brought herein. The exclusive jurisdiction to sell the lands of the minors for reinvestment was in the probate court as already held in Watson v. Henderson, supra, and the chancery court having no jurisdiction in the matter, the whole proceeding therein was void and the purchasers at the sale acquired no title to the lands. It is insisted in any event that’ the plaintiffs acquired title to certain lands in Lee County purchased with'the proceeds of their St. Francis 'County lands realized from the void sale thereof and with full knowledge that such was the fact, disposed of said Lee County lands after coming of age and thereby ratified the chancery court’s action in making the sale and are estopped to deny the defendants right to possession thereunder on that account. The testimony however does not show that the entire amount realized from the sale of the lands in St. Francis County was invested in said other lands in Lee County and neither can it be said to establish the fact that said lands were sold by the minors and the proceeds enjoyed by them after knowledge of the unauthorized sale of their St. Francis County lands by the chancery court nor that they still had the consideration therefor at the time of the institution ’ of this suit nor had they disposed of it. The defendants were in nowise induced to make the purchase of the lands or in any way misled into a’ change of attitude or position, so far as said purchase was concerned, by any acts of the minors after coming of age and the facts are not sufficient to constitute an estoppel against plaintiffs and can not constitute such a ratification of the void sale as would make it effectual against them. The chancellor erred in finding otherwise and the decree is reversed and the cause remanded with directions to render a decree in accordance with this opinion, and for further proceedings in determining appellees’ right to compensation for betterments. It is so ordered.