Plumlee v. Bounds

176 S.W. 140, 118 Ark. 274, 1915 Ark. LEXIS 301

• Court: Supreme Court of Arkansas
• Decided: April 26, 1915
• Status: Published

Opinion

Hart, J.,

(.after stating the facts). (1) It is conceded by counsel for the plaintiffs that under the rule announced in the cases of Horsley v. Hilburn, 44 Ark. 458, and Watson v. Wolff-Goldman Realty Co., 95 Ark. 18, that Lucinda Plumlee had a life estate in the lands in question and that plaintiffs only had a contingent remainder therein.

It is ¡contended by ¡counsel for the defendant that under the sixth subdivision of section 3228 of Kirby’s Digest a contingent remainder ¡can be sold under execution.

In 17 Cyc. 951-2, is .said that the doctrine is well established that a vested remainder is ¡subject to sale under execution but that the authorities are divided on the question of whether a contingent interest, such as a contingent remainder, is liable to be sold under execution.

In some of the States, under statutes similar to our own, it is held that all interest in real estate, whether it be regarded .as vested or contingent, is subject to sale under ¡execution. In other States, under similar statutes, it has been held that a contingent interest in land can not be sold under execution. The reason given is that such a ¡policy would encourage gambling and speculation and that the purchasers iat such sales would not put a high estimate on the possibility of the defendant in execution afterward acquiring any interest in the land and that the danger of sacrifice is ia strong reason for not subjecting contingent interests to sale under execution. This court has already taken a position on the question.

In the case of Horsley v. Hilburn, supra, F. M. Hilbum, guardian of certain minors, who owned a contingent interest in land, procured an order for their sale during the lifetime of the wards ’ mother, who owned the life interest in the land. The court 'held that ¡minors had no interest during the lifetime of the life tenant that could he sold with or without the consent of the donor. Mr. Justice Bakin, who delivered the opinion of the court, in reference thereto, said:

“For like reason there was nothing in the ward of F. M. Hilibum which could he sold under order of the probate court during the lifetime of the mother. There was no error in permitting the proof to be made, by parol, of the loss of the records, and of 'the proceedings which had been taken. The sale passed .all that the wards had in the land that was salable, .and which the probate court could .authorize to be sold, but that was nothing. Nor was the sale effective to carry subsequently ¡acquired title. Section 642 of Mansfield’s Digest upon this point, applied only to voluntary sales by the persons to be bound. It is to the effect that ‘if any person shall convey,’ etc., having no title at the time, and shall .afterward acquire title, legal or equitable, it shall pass to the grantee.”

(2) The principles there announced are conclusive of the present case. Lucinda Plumlee, the owner of the life estate, being still alive, the plaintiffs had nothing which could be sold under execution. The sale amounted to nothing and did not even constitute a cloud upon the plaintiffs ’ title.

It follows that the court was right in dismissing the complaint of the plaintiffs, .and the judgment will be affirmed.