ARK.] RIGHTSELL V. CARPENTER. 91 RIGHTSELL V. CARPENTER. 4-3148 Opinion delivered October 16, 1933. 1. GUARDIAN AND W ARD-AUTHORITY TO MORTGAGE WARDS' LAND.- Guardians and curators, under § 5037, Crawford & Moses' Dig., are authorized, after approval of the probate court of Ithe connty
9 9 RIO HTSELL V. CARPENTER. [188 wherein the lands are situated, to execute valid mortgages on their wards' lands for educational purposes. 2. STATUTES—REPEAL—Repeal s of statutes by implication are not favored, and will no t be allowed unless the implication is clear and irresistible. 3. STATUTES—PRESUMPTION AGAINST REPEALS.—The presumption is against repeals of statutes by implication. 4. GUARDIAN AND WARD—MORTGAGE OF WARDS' LANDS.—Acts 1927, No. 195, authorizing guardians to mortgage their ward's lands to discharge existing liens thereon, did not by impliCation repeal Crawford & Moses' Dig., § 5037, authorizing guardians to mortgage ward's lands for educational purposes, except their homesteads. 5. GUARDIAN A ND WARD—MORTGAGE OF HOMESTEAD OF WARDS.—A mortgage executed by a guardian on the homestead interests of minor wards for educational purposes held void. 6. GUARDIA N AND WARD—MORTGAGE OF WARDS' LAND.—A mortgage executed by a guardian and approved by the probate court on the wards' land, not their homestead, for educational purposes held a valid-lien against their interests. . Appeal from Pulaski Chancery -Court; Frank H. -Dodge, Chancellor ; reversed in part. STATEMENT BY THE COURT. On March 25, 1914, one Joe W. Carpenter died intestate in Pulaski County and left surviving his widow, Cal-lie Carpenter, and the following named children: Joseph H., Theodore W., Richard C., Craig; George, John and Chauncey Carpenter. All said children were minors at the time of the father's death. In 1923 John Carpenter, one of the children, died at the age of eleven years. On September 16, 1927, appellee, -Callie Carpenter, who had theretofore been duly appointed guardian of all the minors and children of Joe W. Carpenter, deceased, filed • her Verified petition in the probate court of Pulaski County, alleging that she .was the guardian of Craig Carpenter, George Carpenter and Chauncey Carpenter, minors ; that each of the said three minors owned, by inheritance, an undivided one-sixth interest in and to lots 9 and 10, block 426, Dul Tall's addition to the city of Little Rock; that said real estate was inherited by said wards from their father ; that lot 9 [this is a mistake and should have been lot 10], at the time of the death of said Joe W. Carpenter, was occupied as his homestead;
ARK.] RIGHTSELL V. CARPENTER. 93 that the interest of said minors in said property is subject to the dower and homestead right . of the. petitioner ; that said wards have no personal es -tate, and have no other estate except their interest in the real estate described; and that it is necessary that said - wards should receive some education, and, unless said real estate is used for that purpose; said wards will be forced to forego the advantages Of schooling. Said lot 9 is hoW subject to a mortgage of $4,000, made on the orders of this 'court. The prayer was that petitioner be ordered and directed to mortgage the undivided interest . of 'her said wards for the purposes aforesaid for not less than two-thirds of its real value, etc. On the same date this' petition wa§. presented to and granted by the probate court of' Pulaski County, and on the same dAte three appraisers were appointed by the probate court to appraise the property. On September 17, 1927, said appraisers reported their apPraisement of the values, 'which is not necessary to here set out. On November 1, 1927, Callie Carpenter, guardian as aforesaid, presented to the probate court of PUlaski 'Connty for its approval two' mortgages or , deeds of trust, executed by her as guardian Of the three minor children in full conformity with the previous orders' of the court, and on the same date, said mortgages, and the notes -which accompanied them, 'were in 'all- respeCts approved and confirmed by said . court. 'The tWo mortgages, executed as hereinbefore set Out; were'.delivered to the American Southern Trust COmpany of Little Rock, mortgagee, and afterwards transferred by said mortgagee to W. A. 'Campbell and W. P. Camribell. The Moit-gage covering lot 9- was for the sum of $2,750. The Mortgage which covered lot 10 was for the like amount. The record reflects' that a mortgage was- executed by the guardian in 1923 Upon lot 9, block '426, DuVall's addition, but this is not important in so far as a determination of this case is concerned. . This suit was filed by aPpellant . trustee against Collie. Carpenter and . all the surviving heirs at law of Joe W. Carpenter, deceased, in the- Pulaski Chancery Court to foreclose the two Mortgages heretofore described in this statement. Callie Carpenter answered in her own
_ 94 _ _ EIGHTSELL V. CARPENTER. [1_8_8 right and in behalf of the three minor children, setting forth that all orders of the probate . court of Pulaski County granting authority to the guardian to execute said mortgages were void, and that said mortgages were void, because of want of authority in the guardian to execute the same. On trial of the case, the chancellor dismissed appellant's complaint as to each of the minor defendants, Craig Carpenter, George Carpenter and Chauncey Carpenter ; rendered judgment in favor of appellant as against Callie Carpenter, Joseph H., Theodore W., and Richard •. Carpenter, who were of age at the time of the execution of the. mortgage. . The trustee prosecutes this appeal to reverse the decree of the- chancellor in holding the two mortgages void in so far as they affect the interests of the three minors. Kenneth .Lane and Trieber Lasley, for appellant. E. G. Shoffner, for appellee. JOHNSON, C. J., (after stating the facts). In holding the two mortgages void in so far as they affect the interests of the three minor children, the trial court evidently based his findings upon the case of Rose v. W.B. Worthen Company, 184 Ark. 550, -42 S. W. (2d) 1002. In that case this court had under consideration a mortgage executed by a guardian in behalf of her wards which was duly authorized by the probate court of Pu-laski County upon petition therefor, as follows : "Petitioners pray that, in order to care for the liens, to keep the heirs in school and prevent them becoming subjects of charity, and to prevent waste and lo • ss of the balance of the -estate, that petitioner, as guardian and' curator, be authorized and directed to borrow $750 at the best possible rate of interest and to mortgage the interest of her wards in the real- estate -to secure the payment therefor." - The probate court of Pulaski County granted the petition of the guardian and authorized the execution of the mortgage. The mortgage was executed in conformity to the probate court order. This court, in disposing of the question there presented, used the following language:
ARK.] RIGHTSELL V CARPENTER. 95 • "Under our former statutes no authority was given executors, administrators or guardians to borrow money and mortgage real property of the estate to • secure funds for maintenance and education of the minors. But act 195 of 1927 authorizes such executors, administrators and guardians to borrow money for certain purposes and secure the same by mortgage upon the real estate belonging to the estate represented by them. Section 120b, Castle's Supplement to Crawford & Moses' Digest, provides the procedure and reads as follows : • "When any administrator, executor or guardian presents to the probate court of the county in which any real property belonging to the estate represented by'such administrator, executor or guardian is situated, his petition for permission anft authority to mortgage the real property, or any part thereof belonging to said estate, in Arkansas, • for the purpose of raising money to pay obligations secured by liens against any real (property belonging to the estate represented by such administrator, executor or guardian, wherever situated, such probate court shall examine the same, and hear the evidence, and, if satisfied that it would be to the best interest of such estate, then said court shall grant the petition and authorize such administrator, executor or guardian to borrow money and execute notes for the same, secured by a mortgage or trust deed to be executed by said administrator, executor or guardian on any part of the real estate belonging to such estate, situated in Arkansas. Provided, that the homestead shall not be incumbered by mortgage or trust deed except for the-purpose of satisfying existing -liens against said homestead." There is no authority granted by this statute to borrow money and secure the same by a mortgage or deed of trust except for the purposes specified in the act, and it contains no expression authorizing the borrowing of money for the maintenance and education of the minors. The probate court was without power to authorize the borrowing of money and execution . of a Mortgage-by the guardian, etc., for any other purpose than as expreSsed in the statute, and its order authorizing it, a.S . well as the mortgage executed in pursuance thereof for money to be used for
96- RIGHTSELL V. CARPENTER. [188 any other purpose, were void, and such mortgage constituted no lien against the. lands and cannot be inforced against them for any .money borrowed and expended for any purpose other than as specified in said statute. After most serious consideration, we have concluded that the doctrine announced in the Rose case, supra, to the effect that no authority of law existed prior to act 195 of 1927 permitting guardians to mortgage or incum-ber by deeds of trust their wards' interest in real estate in Arkansas for educational purposes is hereby expressly overruled, because: The Legislature of 1873 passed an act, which is now § 5037 of Crawford & Moses' Digest, which reads aS follows : "The probate court shall order the proper education of minors according to their means, and for that purpose may, from time to time, make the hecessary appropriations of the money or personal estate of any Minor, and, when the personal estate shall be insufficient or not applicable to the object, upon application the court may order the lease or sale of real estate, or so much thereof as may be requisite, or that the same be mortgaged for not less than two-thirds of its real value, to raise the funds necessary to complete the education of such minor." Act April 22, 1873, p. 185. This section of the act of 1873 has been brought forward by all the digesters of the statutes of this State since that time and has been treated and considered by every one as a part of the laws of this State. Section 5037, quoted supra, in plain and simple language gives to guardians the right and, authority, after application to and approval by the probate court, to execute mortgages on their ward's lands for the purpose of raising money for the education of such- wards. By the terms of this section of the statute, the ward's rights and interests are protected by the orders and findings of the probate courts, which courts, by constitutional enactment, are vested with superintending control over all such estates. Article 7, § 34, Constitution of 1874. , This section of the Digest further protects the interests of the ward, in that the lands must be appraised by disinterested persons appointed by
ARK.] RIGHTSELL V. CARPENTER. 27 the probate court. It further protects their interest, in this; that such mortgage cannot be exeCuted until it is determined by the probate court that the personal estate of such ward is insufficient or.inapplicable to the object. We now hold that under the act of April 22, 1873, a part of which is now § 5037 of Crawford & Moses' Digest, guardians and curators 'do have authority, after approval of the probate court of the county wherein the lands are situated, to execute valid mortgages and deeds of trust upon the wards' lands for educational purposes. It is insisted in the instant . case that § 5037 of Craw-ford & Moses' Digest has been repealed by act 195 of 1927. Section 2 of act 195 of 1927, Which is said to repeal § 5037 of Crawford & Moses' Digest, reads as follows: . "That when any administrator, executor or guardian presents to the probate court of the countY in which any real property belonging to the estate represented by .such administrator, executoi. or guardian is. situated, his petition for permission and authority to mortgage the real property, or any part thereof, belonging to said estate, in Arkansas, for the purpose of raising money to pay obligations secured.by liens against any real property belonging to the estate represented:by such administrator, executor or guardian, wherever situated, Such probate court shall examine the same, and'hear the evidence, and. if satisfied that it would.be to the best interest of such estate, then said- court shall grant the petition and authorize such administrator,, executor or guardian to borrow money 'and execute notes for the same, secured by a mortgage or trust deed to be executed by said. administrator, executor or guardian on any part of the real estate belonging to such estate, situated in Arkansas. Provided, • that the homestead shall .not be incumbered by mortgage or trust deed. except for the purpose of satisfying existing . liens . against said homestead." - If § 5037 of Crawford & Moses' Digest is repealed by act 195 of 1927, it must 'be by implication, because no direct repeal is effected by plain , terms of the act. Repeals by implication are not favored in the law. Hauck v. .State, 166. Ark. 613, 267- S. W. 127; State 1r.
28 RIGHTSELL V. CARPEN TER. -1188 White, 170 Ark.. 880, 281 S. W. 678 ; Mays v. PhilliPs County,168 Ark. 826, 272 S. W. 62. This court held in Babb-v. El Dorado, 170 Ark. 10, 278 S. W. 649, that "the repeal . of any law merely by implication is not favored and the repeal will not be allowed unless the implicatIon.is clear and irresistible." Again, this court held in Gilliland Oil Company . v. State ex rel. Attorney General, 171 Ark. 415, 285 S. W. 16, that "the presumption is against repeal of statutes by implication." • Tested by the rules above announced, it is perfectly evident that act 195 of 1927 does not repeal by implication any part of § 5037 of Crawford & MOses' Digest other than the homestead . rights of the minors, which will be discussed hereafter. In other words, we now conclude that act '195 of 1927 gives to 'guardians the additional right and authority to mortgage their wards' lands for the purpose of refunding. subsisting liens against the same, and withdraws all authority of such guardians to incumber their wards' homesteads, except for the purpose of refunding subsisting liens against such homesteads. . ..• . It will be noted that the proviso appearing at the end § 2 of act 195 of 1927 reads as follows : "That the. homestead shall not be incumbered by a mortgage or trust deeds except for the purpose of .satisfYing existing liens against said homestead." This proviso has the effect of withdrawing all authority . from guardians to mortgage or incumber by deeds of trust the homestead rights of minors for any purpose other than "raising money to pay obligations secured by liens agai-nst such homesteads." The effect of our holding is that, under § 5037 of Crawford Moses' Digest, guardians and curators had the power and authority, with the approval of the probate courts, to execute mortgages and deeds of trust Upon ihe real estate belongin g to their wards for educational purposes, which necessarily included the right to mortgage the homestead of such minors. This authority existed up to the effectiveness of act 195 of 1927. This act withdrew all authoritY theretofore in guardians to
mortgage the homestead except . for the purposes expressly recognized in .said act. . • The two mortgages in the instant: casp, having been executed after the effectiveness 'of. act 195. of . 1927, their validity must be measured. by 'said; act'. It-follows from what we, have said that the mortgage upon lot 10 in block 426, DuVall's addition to Little Rock, the -same being the homestead .of the minors, is void, in so far as the minors' interests are concerned, and the chancellor was correct in so holding. The mortgage, howeVer,.covering lot 9 in block 426 is a Valid lien against the minors' interest in said hit, and the , chancellor erred in holding otherwise. . For the reasons aforesaid, the . caSe is reversed, and the cause is '1-6:handed with directions td . the . chaiicery court to enter a deéree in. conforidity With thiS.6,Piiiion.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.