Hobbs v. Lenon, 4-3923.
| Decision Date | 23 September 1935 |
| Docket Number | No. 4-3923.,4-3923. |
| Parties | HOBBS et al. v. LENON et al. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Pulaski County, Third Division; Marvin Harris, Judge.
Action by William F. Hobbs and others against W. E. Lenon, trustee, and others. Judgment for defendants, and plaintiffs appeal.
Affirmed.
Horace Chamberlin, of Little Rock, for appellants.
John A. Sherrill, Cockrill, Armistead & Rector, of Little Rock, for appellees.
This is an action in ejectment by appellants against appellees in the Pulaski circuit court to recover certain real estate situated in Pulaski county, Ark. Both parties deraign title from a common source. This cause was heard by the trial court upon demurrer by defendants to plaintiffs' complaint and amendments thereto, and the various exhibits attached and made part thereof. Defendants' demurrer was sustained, and, plaintiffs refusing to plead further, judgment was rendered for defendants from which is this appeal.
The history of the devolution of said title is substantially as follows:
James B. Keatts, who was the owner of the land involved, on September 1, 1837, mortgaged the same to the Real Estate Bank of Arkansas to secure his bond to said bank for the sum of $20,500, given for 205 shares of stock in said bank. This bond was made due and payable October 26, 1861. In January, 1861, the Legislature passed Act No. 112, approved January 16, 1861, to take effect October 26, 1861. This act gave authority to the state of Arkansas to institute suit in the Pulaski county chancery court to foreclose mortgages given to the Real Estate Bank then held by the state of Arkansas. Said act provided the procedure to be followed in the prosecution of said suits. On November 25, 1867, the state brought suit in the Pulaski county chancery court under said act to foreclose the Keatts mortgage. The act expressly provided that the suit should be against the specific lands covered by the mortgage and that no person should be made defendant and that constructive service should be obtained by publication of notice to all persons to appear and make known to the court any claim or interest they might have in or to said lands. James B. Keatts appeared before said court and demurred to the bill filed by the state, which demurrer was overruled by the court. That, thereafter, neither Keatts nor any other person made any claim to said land during the pendency of said suit.
The mortgagor, James B. Keatts, died July 7, 1873, testate, and by the terms of his will the land involved was devised to his niece, Helen Hobbs, for life, with remainder over to her surviving children. It is under said will that plaintiffs claim title as the surviving children of Helen Hobbs, who deceased October 10, 1934. On April 25, 1879, a final decree was rendered in the state's foreclosure suit wherein it was decreed that there was due on said bond the sum of $18,005.14, plus 6 per cent. interest thereon from October 1, 1870, and said land was condemned and ordered sold in satisfaction of said indebtedness. Sale was fixed by the court to be had September 15, 1879. Sale was had on said date, the state bidding $26,444 therefor. Sale was approved September 17, 1879. On August 7, 1880, the state, by its deed of that date, conveyed this land to George H. Meade for the sum of $11,856. Appellees claim title by subsequent conveyance of George Meade's grantees.
On September 20, 1874, Helen Hobbs executed her deed of trust to George Dodge, as trustee, for George H. Meade, including this land and other lands, to secure to George H. Meade a debt of $3,763.35, and on September 12, 1878, George Dodge, as such trustee, sold to George H. Meade, under the terms of the deed of trust, all the lands therein included. Afterwards, in an action of ejectment brought by George H. Meade against Helen Hobbs, the court in said action canceled said trustee's deed and held it void and of no effect. Afterwards, under a compromise agreement between George H. Meade and Helen Hobbs, she executed to him, on December 12, 1882, her deed to the land involved and delivered possession thereof to him, which he and his successors in title have held ever since. George H. Meade died testate, and his will was probated August 31, 1890. That, by the terms of said will the land involved was devised to his sister, Kate A. Meade, Mrs. Harriet S. Newton, and Mrs. H. W. Meade, his mother. That, by a chain of conveyances from these devisees and their subsequent grantees, all the title George H. Meade had in and to said land passed to appellees.
It is contended on the part of appellants that under the terms of the James B. Keatts will, Helen Hobbs became the life tenant of said land, and her children became the contingent remaindermen, and that appellants, as such remaindermen, had no right of entry until the termination of the life tenancy of Helen Hobbs. That the life tenant and those holding under her as such should be treated and held accountable as involuntary constructive trustees, and while so holding could not purchase the outstanding title to said land and thereby deprive the remaindermen of all rights and title to the land. That such an acquisition of the title by the holder of the life tenancy would be a violation of such trust relation, and that such acquisition by the holder of the life tenancy should be treated as a redemption for the benefit of the remaindermen. This contention is predicated upon the assumption that Helen Hobbs acquired a life estate in the mortgaged land under the terms of the James B. Keatts will, and that her life estate continued until her death, and that she conveyed her life estate to George H. Meade and that George H. Meade, while holding as such life tenant, purchased said land from the state of Arkansas and that he and those claiming under him, including appellees, have held said lands continuously as such life tenants until the death of Helen Hobbs, October 10, 1934, at which time all rights of appellees as such holders of the life estate of Helen Hobbs ceased.
It is further contended by appellants that the foreclosure decree in favor of the state is void because the Pulaski county chancery court was without jurisdiction; this upon the ground, first, that the act of January 16, 1861, was unconstitutional in that the Legislature had no power to enact said statute; second, that James B. Keatts, the mortgagor, died prior to the rendition of said decree and that said cause was not revived in the name of the legatees, and for that reason the court had no jurisdiction to render said decree or approve said sale. The attack made upon said foreclosure decree and the proceedings had therein is a collateral attack.
It has been the long and well-settled rule in this state that where the record shows that a court of superior jurisdiction has jurisdiction of the subject-matter and of the person, that such judgment or decree cannot be attacked collaterally, but only by some direct proceeding in the court rendering the judgment or decree, or under the provision of section 6290 of Crawford and Moses Digest. In the case of Lambie v. W. T. Rawleigh Co., 178 Ark. 1019, 14 S.W.(2d) 245, 248, we said: "If the judgment or decree is void upon the face of the record itself, it may be attacked collaterally; but, if its invalidity is not apparent on the face of the record, it cannot be attacked collaterally." Again in the recent case of Turley v. Owen, 188 Ark. 1067, 1069, 69 S.W.(2d) 882, in which the authorities were reviewed as to the right of collateral attack upon judgments and decrees, we there reaffirmed the rule announced in the Lambie Case, supra. The above rule is so firmly established in this state, we do not deem it necessary to cite the numerous decisions of the court approving the rule.
In the state's foreclosure suit against the mortgaged land, the only subject-matter there involved was the specific mortgaged land and the application of the land to the payment of the debt secured thereby, an action strictly in rem. The Pulaski county chancery court was, by the act of January 16, 1861, vested with jurisdiction of suits for that purpose. The mortgaged land was made the subject-matter involved. No person could be made defendant. Constructive service by publication was the only service required or contemplated by the act. The record here shows the provisions of the act were followed in said proceedings giving the chancery court jurisdiction over the mortgaged land. And having acquired jurisdiction of the subject-matter, its decree, therefore, would not be subject to collateral attack.
It is equally well settled that judgments and decrees entered upon constructive service by publication will be given the same favorable presumption as judgments and decrees upon personal service. Crittenden Lumber Co. v. McDougal, 101 Ark. 390, 142 S. W. 836; Price v. Gunn, 114 Ark. 551, 170 S. W. 247, L. R. A. 1915C, 158; State ex rel. Attorney General v. Wilson, 181 Ark. 683, 690, 27 S.W. (2d) 106, as was held by us in the Turley Case, supra, that the rigor of the rule is not modified or impaired because the proceeding was one in rem and not in personam.
A further reason why the foreclosure proceedings and decree in the case of the state versus the mortgaged land rendered in the Pulaski county chancery court, April 25, 1879, should not be disturbed is: That in 1872, the case of McCreary v. State, 27 Ark. 425, was before this court, in which the validity and constitutionality of the act of January 16, 1861, was directly called in question in a foreclosure proceeding of a similar mortgage then held by the state. Elaborate briefs were filed by both appellants and appellees, and upon a thorough consideration of the validity of the act, the court sustained the same generally. In the opinion rendered, the court held (we quote from the first headnote): "The Act of the Legislature of ...
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