Opinion on Rehearing
The law as declared in Kessinger v. Wilson, 53 Ark. 400, 14 S. W. 96, 22 Am. St. Rep. 220', still applies in this state. The effect is that where one dies seized of a homestead leaving as heirs minor children, they have two separate and distinct estates in the land, existing* at the same time and incapable of merger — the estates of homestead and of inheritance. The former entitles them to entry when the ancestor dies; the latter when the younger child attains majority.
Appellant contends that when the statute of April 17, 1899 (§ 8939, Pope’s Digest) was enacted, the rule in the Kessinger Case was changed. The section of the Digest is:
“If any person entitled to bring an action under the laws of this state be at the time of the accrual of the cause of action under twenty-one years of age, or insane, or imprisoned beyond the limits of the state, such person shall be at liberty to bring such action within three years next after full age or such disability may be removed.”
This statute was not enacted, as it is contended, to change the rule in the Kessinger Case, but changes the rule in Sims v. Cumby, 53 Ark. 418, 14 S. W. 623. In the Sims-Cumby Case it was held that the general savings clause of § 4489 of Mansfield’s Digest, then in effect, and which gave a three-year grace period to infants within which to bring an action after their disability should be removed, had application only to laws in force at the time of the passage of that statute.
In Harris v. Brady, 87 Ark. 428, 112 S. W. 974, the opinion points to the application just referred to. In that case a tax purchaser (Jan. 1, 1901) took possession by virtue of such purchase and pleaded the two-year statute of limitation in bar of a suit instituted by the owner of the property • to recover. The land was the homestead of the minors, one of whom did not attain his majority until April 11, 1904. The suit was begun April 10, 1905. In line with the Kessinger Case, the court held that there was no right to possession of the homestead until the youngest minor became of age April 11, 1904; and, therefore, the statute of limitation did not begin to run until that day.
The doctrine of Kessinger v. Wilson, has been reiterated in such maimer as to show that it was not affected by enactment of § 8939 of Pope’s Digest. An example is Shapard v. Mixon, 122 Ark. 530, 184 S. W. 399. The decision was in 1916. The court said: “A minor child who inherits the homestead has ‘two separate and distinct estates in the homestead existing at the same time and incapable of merger, namely homestead and inheritance.” (Citing Kessinger v. Wilson.)
In Lesser v. Reeves, 142 Ark. 320, 219 S. W. 15, Mr. Justice Hart, speaking for the court, said: “The adult heirs had no right to the possession of the homestead until the youngest child became twenty-one years of age, and the statute of limitation did not begin to run against them until the termination of the homestead of the youngest child. Mrs. Mamie Hart was the youngest child and did not become twenty-one years old until July 31, 1914. This suit was commenced on December 1, 1917. Hence the suit was not barred by the statute of limitation.”2 (Citing Smith v. Scott, 92 Ark. 146, 122 S. W. 501.)3
In emphasizing- their belief that the court ignored the three-year statute of limitation expressed in § 8939 of Pope’s Digest, counsel for appellant seems to have overlooked the fact that in construing the seven-year statute of limitation (Pope’s Digest, § 8918) a similar three-year saving clause had to be considered. That statute provides that if at the time of the accrual of a cause of action the person shall be “. . . . within the age of twenty-one years, or non compos mentis, that such person or persons, his, her or their heirs, shall and may, notwithstanding said seven years may have expired, bring his or her suit or action so as such infant or non compos mentis, his, her or their heirs shall bring same within three years next after full age or coming of sound mind.”
That statute, embracing the language quoted, was enacted January 4, 1851; and, therefore, it had for many years been in effect when the Kessinger Case was decided. If existence of that three-year proviso before the decision in Kessinger v. Wilson permitted the case to be decided as it was, then assuredly there is nothing in the language of § 8939, later enacted, that necessitated a change in the applicable law.
Argument of counsel for appellant seems to be predicated upon their belief that during the existence of the homestead, whether in favor of the widow or minors, a cause of action may accrue in favor of the adult heirs. Of course, if a cause does not accrue, then the statute of limitation does not begin to run; and since the youngest Wheeler child did not become of age until January 1, 1932, the homestead right did not expire until that day, for a minor can do nothing to waive his homestead. Altheimer v. Davis, 37 Ark. 316. Any suit any of the Wheeler heirs might have instituted prior to January 1, 1932, for recovery of the freehold, as authorized by § 8918 of Pope’s Digest, would have been prematurely brought.
One case cited by appellant appears inconsistent— Cunningham v. Dellmon, 151 Ark. 409, 237 S. W. 450. It was decided in January, 1922. The opinion was written by Mr. Justice Hart, who also wrote the opinion in the Lesser-Reeves Case. The latter case was decided in February, 1920. On page 421 of 151 Ark., on p. 453 of 237 S. W., it is stated that the complaint shows an abandonment of the homestead by the widow and that the purchaser went into possession within five years after a guardian’s sale. Certainly, where there is abandonment of homestead by the widow, that homestead right ceases. The widow may abandon, though a minor cannot. The opinion then says:
“ Therefore, we hold that it is fairly inferable from the allegations of the complaint that the mother of appellant abandoned the homestead by selling* it and the statute of limitation then commenced to run against appellant. He is barred of relief either .under the five-year statute of limitation relating to purchases at judicial sales or the seven-year statute relating to actions generally to recover lands. C. & M. Digest, §§ 6942 and 6946. Each of these statutes contains a saving clause to minors for a period of three years after their disabilities shall have been removed. In the present case the statute began to run when appellant was a minor, and he waited until nearly seven years after becoming twenty-one years old before he commenced this suit.”
It seems that in this opinion the fact was overlooked that when the widow abandoned her homestead, the homestead right of the minor necessarily continued until he was twenty-one years of age, and that the cause of action under the seven-year statute of limitation could not accrue until he became twenty-one years of age. It also appears that counsel for appellant cited the Kessinger Case. The opinion makes no reference to that decision, and no authority is cited to justify the holding that the cause of action of the minor accrued upon abandonment of the homestead.
Other cases are cited by appellant, but they do not sustain the points urged.
Estoppel and laches are also invoked. Most of the transactions relied upon to create estoppel occurred before January 1, 1932. There can be no estoppel as to a cause of action which did not accrue until after the act relied on to create estoppel occurred. The same is true as to laches. In addition, this suit was originally brought in circuit court as an ejectment proceeding. The rule is well established that laches has no application where the- plaintiff is not seeking equitable relief, but undertakes to enforce a legal title, and where title is not barred by the statute of limitation in reference thereto. Lesser v. Reeves, supra, and cases cited.
More than three years elapsed after Mrs. Hart became of age.
The reference “92 Ark. 146” is to the page of the Report. The opinion begins on page 143.