{ "id": 1660100, "name": "Tellier v. Darragh", "name_abbreviation": "Tellier v. Darragh", "decision_date": "1952-04-14", "docket_number": "4-9676", "first_page": "363", "last_page": "368", "citations": [ { "type": "official", "cite": "220 Ark. 363" }, { "type": "parallel", "cite": "247 S.W.2d 960" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "275 S. W. 905", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "169 Ark. 463", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1374031 ], "opinion_index": 0, "case_paths": [ "/ark/169/0463-01" ] }, { "cite": "132 S. W. 204", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "96 Ark. 434", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1542023 ], "opinion_index": 0, "case_paths": [ "/ark/96/0434-01" ] }, { "cite": "5 S. W. 797", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "49 Ark. 468", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1310135 ], "opinion_index": 0, "case_paths": [ "/ark/49/0468-01" ] }, { "cite": "171 S. W. 113", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "115 Ark. 84", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1533762 ], "opinion_index": 0, "case_paths": [ "/ark/115/0084-01" ] }, { "cite": "110 S. W. 1046", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "86 Ark. 280", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1521465 ], "opinion_index": 0, "case_paths": [ "/ark/86/0280-01" ] }, { "cite": "20 S. W. 521", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "56 Ark. 633", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1326063 ], "opinion_index": 0, "case_paths": [ "/ark/56/0633-01" ] }, { "cite": "37 Ark. 155", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1870938 ], "opinion_index": 0, "case_paths": [ "/ark/37/0155-01" ] }, { "cite": "38 Ark. 471", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1900536 ], "opinion_index": 0, "case_paths": [ "/ark/38/0471-01" ] } ], "analysis": { "cardinality": 557, "char_count": 8910, "ocr_confidence": 0.523, "pagerank": { "raw": 9.505882454708161e-08, "percentile": 0.5204145106529376 }, "sha256": "91be5a2db9983debafeec9b6d9cfaa56c4f9228f4b70baead1f27d5e72073e77", "simhash": "1:82625b02ae687442", "word_count": 1537 }, "last_updated": "2023-07-14T17:18:21.188385+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Grieein Smith, C. J., dissents." ], "parties": [ "Tellier v. Darragh." ], "opinions": [ { "text": "George Rose Smith, J.\nThis is an action brought by the appellee, F. K. Darragh, to quiet his title to certain wild and unimproved land near Little Rock. There is involved in this appeal the title to an undivided one-third interest in the land, this third having formerly been an asset of the estate of W. P. Feild,'Jr., who died in 1932. Feild\u2019s widow was named as executrix of his will, and as executrix she sold this one-third interest to herself as an individual in 1942. Mrs. Feild held the title until she conveyed to Darragh in 1950. When Dar-ragh brought this suit a few days later he joined as defendants the various creditors of the Feild estate, including the two appellants, Grace W. Tellier and R. L. Bradley. The complaint alleges that the various defendants hold claims against the Feild estate but that the claims are barred by limitations and laches and should be canceled as clouds on the plaintiff\u2019s title. The two appellants are the only defendants who resisted the suit. Bradley filed a cross-complaint asking that the executrix\u2019 sale to herself be set aside and the land be sold to pay his claim. Mrs. Tellier does not attack the executrix\u2019 sale but does insist that the sale was subject to a lien in her favor, which should be foreclosed. The issue in each case is whether the appellants waited too long before asserting in 1950 rights that might have been enforced in 1942. The chancellor dismissed both cross-complaints for want of equity.\nThe Feild estate was evidently insolvent. In 1938 the probate court, in order to pay debts, ordered the executrix to sell at public sale this one-third interest in\nBoth appellants justify their eight-year delay upon the theory that a claim against an estate is a judgment and that the statute of limitations applicable to judgments is ten years. Ark. Stats. 1947, \u00a7 37-212. Furthermore, we have held that the statute does not begin to run against such a claim until the administration has been closed. \u201c[The claim] stands, meanwhile, waiting payment, in due course, under orders of the court. It has the force and dignity of a judgment, but differs from it very materially in several respects. No execution can issue upon it. No demand can be made for it of the personal representative, until its payment be ordered, and the order of payment does not always, or generally, follow the allowance. Never as a matter of course. The court must ascertain all the debts of its class, and all having precedence; and must take an account of the assets, and pro rata them, if necessary, before ordering payment. ... It is quite plain that the Statutes of Limitation have no application in favor of an estate as against allowances; or it might be practicable, by long postponements of, or impediments to the closing of an estate, to defeat all the allowances wholly.\u201d Fort v. Blagg, 38 Ark. 471. In answer to the appellants\u2019 reasoning Darragh contends that in similar situations we have held that the creditor\u2019s effort to reach the real estate is analogous to an action for the recovery of real property, as to which the limitation is seven years. Ark. Stats., \u00a7 37-101; Mays v. Rogers, 37 Ark. 155; Roth v. Holland, 56 Ark. 633, 20 S. W. 521; for perhaps a better analogy, where there has been no adverse possession, see Martin v. Gregory, 86 Ark. 280, 110 S. W. 1046.\nWe find it unnecessary to decide whether the seven- of ten-year statute governs, as the issues can better be settled upon other grounds. Mrs. Tellier acted as attorney for the executrix when the 1942 sale occurred, prepared all the necessary documents, and unquestionably believed that in the circumstances the executrix\u2019 sale to herself was permissible. Mrs. Tellier has adhered to that view, as she does not attack the sale but asks instead that her lien be foreclosed. We think it plain that in her case the governing statute of limitations has run. It is true that her claim was originally a judgment against the estate, enforcible for ten years. But as to this particular asset Mrs. Tellier waived her right to insist upon a sale by the probate court for the purpose of payment and instead accepted the contractual lien recited in the executrix\u2019 deed. In doing so she likewise waived, as to this asset, the protection afforded to her as a judgment creditor. We have quoted the reasons why the statute does not run against a claim until the administration is closed, and it is evident that they do not apply to Mrs. Tellier\u2019s lien. As to this asset she was no longer required to await the action of the probate court for payment; on the contrary, her remedy was by foreclosure in chancery, and the suit could have been filed the day after the executrix\u2019 deed was delivered, regardless of whether the administration had been closed. By accepting a contractual lien upon this land Mrs. Tellier brought herself within either the three-year statute applicable to implied obligations not in writing (Ark. Stats., \u00a7 37-206; Cotham v. Lucy, 115 Ark. 84, 171 S. W. 113) or the five-year statutes applicable to written obligations (\u00a7 37-209) and to actions not otherwise provided for (\u00a7 37-213). In either case a delay of eight years is too long.\nThere is some suggestion that the statute was not properly pleaded by the appellee, but the argument is without merit. The complaint asserted that the various claims were barred by limitations and laches; so there was no reason for the plaintiff to respond to the cross-complaints merely to reaffirm the position he had already taken.\nIn Bradley\u2019s case the situation differs from that of Mrs. Tellier, as Bradley relies upon an original claim probated in 1932 rather than upon a contractual lien. It goes almost without saying that the executrix\u2019 sale to herself was voidable, as the law declares inflexibly that a fiduciary cannot permit his personal interest to conflict with his duty as trustee. But the transaction was sufficient to pass legal title, the creditor\u2019s remedy being to seek the imposition of a constructive trust in a court of equity. It is familiar law that, in the absence of concealment, the trustee of a constructive trust is entitled to the benefit of the statute of limitations and to the defense of laches. Matthews v. Simmons, 49 Ark. 468, 5 S. W. 797; Rest., Trusts, Ark. Anno., \u00a7 219; Rest., Restitution, \u00a7 179. Here there was no concealment, the entire transaction being a matter of record.\nThe facts show that the enforcement of Bradley\u2019s claim against this property is barred by the rule of laches. Although laches does not constitute a bar to the legal enforcement of a judgment, as by writ of execution, Ward v. Sturdivant, 96 Ark. 434, 132 S. W. 204, here Bradley asks the active aid of equity in the declaration of a constructive trust. The situation of the parties has changed so greatly since the claim was filed in 1932 that equity should refuse relief.\nBradley\u2019s claim was originally a mortgage debt owed by Feild and two other mortgagors and secured by property not now in controversy. When Feild died the mortgagee probated a claim against the estate for the entire debt of $4,400. In 1934 the mortgage was foreclosed against the and the other two debtors, resulting in a deficiency judgment for $2,000; this is the claim now asserted by Bradley. The mortgagee failed to revive its judgment against Feild\u2019s co-obligors; so as a result of the creditor\u2019s delay the Feild estate has lost its right of contribution as to two-thirds of the debt.\nIf this were the only factor we might protect the estate by permitting Bradley to realize only a third of his claim. Best., Restitution, \u00a7 148, Comment c. But other changes have taken place as well. Bradley\u2019s claim was originally subordinate to the expenses of administration, to Mrs. Tellier\u2019s claim for an attorney\u2019s fee, and to the funeral expenses. Those claims totaled more than $1,700, which the scant evidence in the record indicates to have been the value of this one-third interest in the early course of the administration. During Bradley\u2019s long and unexcused delay all these preferred claims have been outlawed. It is apparent that there was no equity in the property for Bradley originally and that he now seeks to realize an increase in value that took place during his long period of inaction. This is a matter we may consider in determining the existence of laches. Horn v. Hull, 169 Ark. 463, 275 S. W. 905. Finally, during all these years it was the Feild family who paid the taxes on the property, and it has now passed into the hands of a purchaser for value. In view of all these circumstances we are of the opinion that Bradley\u2019s claim is too stale to warrant the assistance of equity.\nAffirmed.\nGrieein Smith, C. J., dissents.", "type": "majority", "author": "George Rose Smith, J." } ], "attorneys": [ "Moore, Burrow, Ghowning & Mitchell, Laivrence B. Burrow, Jr., and Walter L. Pope, for appellant.", "Owens, Ehrman & McIIaney, for appellee." ], "corrections": "", "head_matter": "Tellier v. Darragh.\n4-9676\n247 S. W. 2d 960\nOpinion delivered April 14, 1952.\nMoore, Burrow, Ghowning & Mitchell, Laivrence B. Burrow, Jr., and Walter L. Pope, for appellant.\nOwens, Ehrman & McIIaney, for appellee." }, "file_name": "0363-01", "first_page_order": 387, "last_page_order": 392 }