Clay v. Bilby

• Decision Date: 09 January 1904
• Citation: 78 S.W. 749,72 Ark. 101
• Parties: CLAY v. BILBY
• Court: Arkansas Supreme Court

78 S.W. 749

72 Ark. 101

CLAY v. BILBY

Supreme Court of Arkansas

January 9, 1904

Appeal from Arkansas Chancery CourtJOHN M. ELLIOTT, Chancellor.

Affirmed.

Decree affirmed.

Lewis & Ingram, for appellants.

The court acquired no jurisdiction by the warning order.65 Ark 90; 61 S.W. 918.The proof of the publication of the warning order was insufficient.65 Ark. 142.A judgment or decree rendered without notice is absolutely void.Sand. &H. Dig § 4190;49 Ark. 411.The decree does not bind anyone because the parties are not named.38 Ark. 438.The five year statute of limitation runs only against parties to the suit in which the sales were made, and not against strangers to the suit.101 F. 97, 98.

W. N Carpenter and Parker & Parker, also for appellants.

Overdue tax decrees are subject to collateral attack, if the statute is not strictly followed.Cf.51 Ark. 34;10 F. 891;64 Ark. 108;59 Ark. 483;55 Ark. 627;61 Ark. 50;52 Ark. 312;55 Ark. 30;56 Ark. 419;65 Ark. 90; 61 S.W. 918.

John F. Park, James E. Gibson and John B. Jones, for appellee.

One who seeks to have a decree set aside or a judgment vacated in equity for want of sufficient service must show that he has a meritorious defense.50 Ark. 462;69 Ark. 518.The act conferred judicial, and not merely ministerial, power, and the proceeding and decree is an exercise of judicial power by the chancery court.Cf. the following authorities as to when acts of courts, etc., are purely ministerial: Cooley, Taxation, § 15, 16;17 Ind. 169;51 Ark. 34;75 Tex. 385.Generally, as to when acts are judicial, see: 11 Abb. Pr. 301;2 Wall. 328;5 Cranch, 173;10 Pet. 449;21 Ark. 364;66 Ark. 1.Cooley, Taxation, §§ 453, 525-6-7, criticised, and cases there cited, distinguished.In proceedings in rem, like the one at bar, where it appears that the court had jurisdiction of the subject-matter or the res, and the general power to grant the character of relief sought, all steps as to notice and matters preliminary to decree will be presumed to have been regular.2 Pet. 168;2 How. 339; 138 U.S. 455.Such a judgment without notice is not a nullity, and can be vacated, set aside or annulled only by direct, and not by collateral, attack.55 Ark. 30;112 U.S. 294;11 Ark. 519, 546, 547, 550, 531, 534, 536;49 Ark. 397;28 Ark. 174;49 Ark. 345;10 Pet. 449;10 Wall. 308; 95 U.S. 714.The record imports verity, and, if appearance is shown by the record, it cannot be contradicted by extrinsic evidence, nor can it be shown that the parties had no right to appear.Appearance cures defective notice.55 Cal. 165;64 Cal. 296;22 Ind. 324;26 N.Y. 418;6 Conn. 508.That the recital as to appearance is conclusive on collateral attack, see further: 7 S. &R. 166;111 Ind. 223;1 Dev. L. 313;62 Ind. 398;6 Pet. 691;3 Wall. 478;11 Ark. 532;61 Ark. 574;Van Vleet'sColl. Att. 2;21 Ark. 146;50 Ark. 338;34 Ark. 642;17 F. 98;80 Ill. 307;10 Ill. 159;7 Cal. 203;72 Mo. 261;11 S. &R. 438;15 Wall. 591.The purchaser is not bound to look beyond the decree.2 Pet. 168;2 How. 339; 101 U.S. 417; 2 Wall. 210; 136 U.S. 519;2 Mich. 234;21 Ark. 364.The whole world is bound by a decree in rem, and the rule confining the defense of laches to parties has no application.Cf.10 Pet. 473.The complaint is sufficient to give the court jurisdiction.Defects in a bill do not avoid the decree.2 Oh. St. 252;46 Wis. 650;33 Ind. 460.A decree is not avoided by any defect that was amendable.92 Mo. 178;79 Ill. 233;79 Id. 39;47 Ark. 31.Nor is a judgment void because the proceeding did not warrant the judgment.89 Mo. 174;3 A. K. Marsh. 536;17 Wis. 169;24 Wis. 93;114 Ill. 147.

H. A. & J. R. Parker, for appellants in reply.

The return or service on the publication or on the summons governs the recital in the decree that "due service was had according to law."4 Col. 416;7 Col. 8;110 U.S. 701;79 Ia. 365;37 Minn. 194, 195;66 F. 90;82 F. 243;50 Ark. 393;84 F. 301;21 Nev. 319, 320;76 Va. 625.The legislature had no power to prescribe for the court rules of interpretation, as attempted in § 18, act 1881, p. 30. 44 Ark. 273;48 Ark. 521;13 Cal. 25.Where the bill failed to aver facts sufficient to entitle plaintiff to relief, the court may and should, even upon default, refuse to enter judgment.Black, Judg., § 84;32 Ark. 445;56 Ark. 419;Fr. Judg. §§ 538-9.The court cannot presume that a cause of action is proved when none is stated.28 N.H. 118;16 N.H. 551;32 Mo. 188;16 Ill. 147.When a court exercises special powers not in accordance with the common law, or exercises its general powers by virtue of some statute over a class of cases not within its ordinary jurisdiction, the facts essential to the exercise of the special jurisdiction must appear in the record.51 Ark. 34;64 Ark. 108;59 Ark. 483;54 Ark. 627;61 Ark. 50;52 Ark. 312;55 Ark. 30;56 Ark. 419;65 Ark. 90; 61 S.W. 918;10 F. 891.The rule of caveat emptor applies to judicial sales.Rorer, Jud. Sales, §§ 459; 460, 461;9 Wheat. 616;32 Ark. 321.If the complaint fails to state a cause of action, any decree thereon is void.32 Ark. 445;56 Ark. 419;Fr., Judg., §§ 538-9;Black, Judg., §§ 84, 87, 93.When a court of general jurisdiction has special or summary powers, wholly derived from statute, its decisions must be treated like those of courts of limited and special jurisdiction.Brown, Jur., § 3, p. 63, and cases cited.

John F. Park, James A. Gibson and John B. Jones, for appellee in reply.

On a proceeding in the nature of a bill for review, a decree can be reviewed only for errors of law apparent on the face of the proceedings.32 Ark. 753;26 Ark. 600;59 Ark. 441;60 Ark. 453.After the term of court a judgment which does not come within Sand. & H. Dig., § 4197, can be attacked only by bill for review.33 Ark. 454;52 Ark. 316;53 Ark. 310.This bill must be within the prescribed term for appeal or writ of error.135 U.S. 227; 10 Wheat. 146.

H. A. Parker, J. R. Parker and W. N. Carpenter, for appellants in reply.

Further, on question of jurisdiction, see: 25 Ark. 60;40 Ark. 124;11 Ark. 120;50 Ark. 439;55 Ark. 35;155 U.S. 404;8 F. 566;14 F. 603;37 F. 37;57 F. 970;70 S.W. 295;26 P. 1009; 17 Utah 257;58 Mich. 293;39 Minn. 337.

OPINION

BATTLE, J.

Matthew Clay, D. D. Saunders and E. V. McFarland instituted a suit in the Arkansas chancery court against J. S. Bilby, and asked the court to quiet title to certain land by setting aside a decree condemning the same to be sold under what is generally known as the "overdue tax act," and by setting aside the sale thereof in pursuance of such decree.They alleged in their complaint that they were the owners of the land, and, without showing the proceedings of the court under which he claims title, stated that the defendant"is claiming or pretending to claim the title to said land by virtue of what is known as an 'overdue tax deed.'" and alleged in the same vague and indefinite way "that said overdue tax title is void * * * because the chancery court of Arkansas county, Arkansas, had no jurisdiction to render the alleged decree upon which the said title is based.That there was no publication or proof of publication of the warning order therein, as the law requires, and that there was absolutely no notice of the * * * pendency of said cause, either personal or constructive."

The defendant answered, and denied the plaintiffs were the owners of the land, and admitted "that he acquired title through a sale under an overdue tax proceeding; that the land was forfeited to the state, and on August 3, 1882, a complaint was filed, charging that taxes were due, and that the forfeiture was void, and praying a lien; and summons was issued and served upon the state auditor; that a warning order was issued and recorded * * * and was duly published;" that the circuit court, on the 9th day of February, 1883, decreed that the forfeiture to the state was void, and that certain taxes were due upon the land, and found the amount of the same and penalty and costs to be $ 9.16, "and ordered and decreed the same to be a lien upon the land, and that the same be sold, unless [the taxes, penalty and costs] were paid within a day named in the decree; and appointed J. J. McEvoy commissioner to sell the land and execute the decree;""that the lien was not paid, and the commissioner, after advertising the land according to law and the decree, sold the same at public sale for the amount of said lien and costs, and at the sale said lands were purchased by John T. Burns for the amount of the decree and costs, and said sale was duly approved by the court; and that said Burns sold and assigned his certificate of purchase, issued to him by the commissioner, to the Arkansas Real Estate Company, to which a deed was issued September 22, 1885, and said company sold said land to defendant by deed dated May 11, 1887."

And the defendant further alleged "that the plaintiffs have exercised no ownership over said land for thirty-eight years, and abandoned the land, and their claim is stale, and cannot be enforced in a court of equity."

The court, after hearing the cause upon its merits, dismissed the complaint for want of equity; and the plaintiffs appealed.

The land in controversy was forfeited to the State of Arkansas on account of the nonpayment of the taxes assessed against the same.For twenty-three years no taxes were paid thereon.On the 3d day of August, 1882, a complaint was filed in the Arkansas circuit court, pursuant to an act entitled "An act to enforce the payment of overdue taxes," approved March 12, 1881, in which it was alleged that the forfeiture was void, and the plaintiff asked that the land be sold to pay the taxes due thereon.An order requiring all persons...