Neal v. Wideman

• Decision Date: 31 March 1894
• Citation: 26 S.W. 16,59 Ark. 5
• Parties: NEAL v. WIDEMAN
• Court: Arkansas Supreme Court

26 S.W. 16

59 Ark. 5

NEAL v. WIDEMAN

Supreme Court of Arkansas

March 31, 1894

Appeal from Cleburne Circuit Court JOSEPH W. MARTIN, Judge.

Judgment reversed and cause remanded.

The appellant pro se.

1. The forfeiture to the State being legal, there could be no subsequent forfeiture or sale for taxes. 31 Ark. 245.

2. An after-acquired title by the State passed to her grantee. Mansf. Dig. sec. 652; 33 Ark. 251; 15 id. 73.

3. In this case there were no overdue or back taxes. Freem. Judg 125, and cases cited; 21 Ark. 145.

4. No one is bound by any judicial proceeding to which he is not a party, and he cannot be made a party unless an opportunity has been offered of defending himself. 2 Ark. 60; ib. 390.

5. No title passed to the State until the sale was confirmed. 53 Ark. 448.

6. The last forfeiture and proceeding was a fraud upon appellant.

OPINION

BATTLE, J.

On the 29th of January, 1889, J. W. Wideman commenced this action against James M. Neal for the recovery of a tract of land described in his complaint. He derived his title from a sale of the land for the taxes of 1876 under a decree rendered by the Cleburne circuit court, in the exercise of the jurisdiction conferred upon it by the "Overdue Tax Law." At that sale the land was stricken off to the State, there being no bidders for it; and, no redemption having been effected within the time prescribed by law, the State Land Commissioner sold and conveyed it to the plaintiff.

The defendant claimed under a donation from the State. In support of his title he alleged that the land was duly assessed, and legally returned delinquent, advertised, and sold, for the taxes of 1876, to the State of Arkansas; and, not having been redeemed within the time allowed by law, it was certified by the county clerk to the Commissioner of State Lands as forfeited; that, afterwards, on the 18th of November, 1881 the Commissioner of State Lands issued to him, on his application, a certificate of donation; that he then took possession thereof, and has occupied and improved it ever since; and that, on the 22d of December, 1882, after he had made payments, and filed proof of improvements, as required by law, the Commissioner conveyed the land to him. He alleged that, after the land was conveyed to him, the Cleburne circuit court ordered the land sold under the "Overdue Tax Law"; that it was sold to the State under that decree on the 29th of December, 1884, more than two years after it had been donated to him; that this sale had never been confirmed by the court; and that the plaintiff purchased the land about the 28th of December, 1888, from the State. He averred, in a vague manner, that the plaintiff purchased the land of the State, well knowing that it had been previously donated to him, the State having acquired the right to do so by the forfeiture of the same for the taxes of 1876. He made his answer a cross-complaint, and asked that the action be transferred to the equity docket, and that the deed of plaintiff be cancelled, his title quieted; and for other relief.

The answer and cross-complaint were held by the court below, upon a general demurrer, to be insufficient; and, the defendant declining to plead further, a final judgment was rendered in favor of the plaintiff.

The defendant, in effect, attacked the title of plaintiff on the ground that the decree of the Cleburne circuit court, under which the land was sold to the State was procured by fraud, and that the plaintiff purchased with notice of that fact. Will equity interfere?

Courts of equity can set aside judgments and decrees obtained by fraud. The fraud for which they will set them aside must be in the procurement of the judgment or decree. A fraud which vitiates the cause of action is a defense which, nothing preventing, must be interposed in the action in which the judgment or decree was rendered. It cannot be asserted against the judgment, in the absence of other grounds of equitable interposition.

A few cases will serve to illustrate the application of the rule which governs courts of equity in setting aside judgments obtained by fraud. Where the parties submitted the matter in dispute to arbitration, after the suit was instituted, and the award was that the defendant should pay a certain sum and the costs of suit, and he performed the award by giving his note for the debt, as ascertained by the arbitrators, with security, but failed to pay the costs, and the plaintiff took judgment for the whole debt sued for, without the knowledge or consent of the defendant, equity annulled the judgment for the debt. Sneed v. Town, 9 Ark. 535. A judgment was set aside for fraud, which was obtained in a suit before a justice of the peace after he had announced to the parties that he was sick, and would not try the cause until the following morning, and the plaintiff had left the place of trial on account of the announcement. In that case the defendant immediately returned to the office of the justice of the peace, and filed before him for the first time a set-off in excess of the claim sued on, and, in the absence of the plaintiff, induced the justice to render the judgment in his favor for the excess, when there was nothing due him. Miles v. Jones, 28 Mo. 87. "An action was commenced against A and others. A having a good defense, the plaintiff agreed to dismiss as to him, and on that account A failed to defend. The judgment taken in violation of this agreement was set aside, and the execution restrained. Similar action was taken where the defendant was assured that he was sued pro forma, because he was supposed to be a necessary party, and that no judgment would be taken against him; and a decree was nevertheless taken against defendant; and so when, after the commencement of a suit, an accord...