Oliver v. Routh

Decision Date27 March 1916
Docket Number284
Citation184 S.W. 843,123 Ark. 189
PartiesOLIVER v. ROUTH
CourtArkansas Supreme Court

Appeal from Madison Chancery Court; T. H. Humphreys, Chancellor reversed.

STATEMENT BY THE COURT.

Appellant instituted this action in the chancery court against appellees and set up two causes of action.

1. Appellant seeks to set aside a decree of foreclosure of a vendor's lien on real estate made in the Madison chancery court several years ago in a suit wherein the Madison County Bank was plaintiff and Percie and Geo. Thos. Oliver were defendants on the grounds that it is void. The First National Bank was the successor of the Madison County Bank.

2. Appellant seeks to set aside as void an order of the Madison probate court for the specific performance of an undivided interest in the same land.

The material facts are as follows: On October 6, 1904, Geo. B Oliver died, owning the land in controversy, situated in Madison County, Arkansas, which was his homestead. He left surviving him his widow, Princie Oliver, now Princie Arrington, and Geo. Thos. Oliver, his minor child and sole heir at law. Prior to his death G. B. Oliver and T. G. Gamble owned the land in controversy, each owning an undivided one-half interest therein. On the 20th day of May, 1903 Gamble by warranty deed, conveyed his interest in the land to G. B. Oliver. The deed recites that a vendor's lien is retained for $ 500 of the purchase money, evidenced by a promissory note of even date. The note was transferred by Gamble to the Madison County Bank and in December, 1904 after the death of Oliver, the Madison County Bank instituted proceedings in the chancery court against the widow of G. B Oliver who was named as Percie Oliver and Geo. Thos. Oliver the minor child, to foreclose a vendor's lien on the lands in controversy. Service was had upon the widow and minor child of Geo. B. Oliver, deceased, in the manner required by statute but the clerk failed to put the seal of the court on the summons. The court found there was a balance due of the purchase money on the said land in the sum of $ 537 and a decree of foreclosure of the vendor's lien of plaintiff was entered of record. The land was duly sold under the decree and the purchaser at the commissioner's sale conveyed the land by deed to E. A. Routh.

In the present action appellant introduced evidence tending to show that some of the installments of the purchase price sued on in that case were not due at the time the decree of foreclosure was entered of record. Testimony was also introduced by appellant tending to show that certain payments had been made which were not taken into account by the court in rendering the decree of foreclosure. Evidence was introduced by appellees tending to show that no such payments had been made. The views we shall hereinafter express, however, render it unnecessary to set out this testimony in detail.

It is undisputed that the land in controversy was the homestead of Geo. B. Oliver at the time of his death and that Geo. Thos. Oliver was still a minor at the time of the institution of this suit. The suit was brought by his mother as next friend.

After the death of Geo. B. Oliver, administration was had upon his estate. A petition was filed in the probate court setting up that Thos. J. Oliver, the twin brother of Geo. B. Oliver had purchased one-half interest in the land in controversy from his brother prior to his death. No written contract of purchase was had between the brothers. It was shown however, to the probate court, that Thos. J. Oliver had made a verbal contract with his brother for the purchase of an undivided one-half interest in the land and had paid him therefor the sum of $ 400 as part of the purchase money. The balance of the purchase money was paid to the administrator and an order was made pursuant to sections 209-214 of Kirby's Digest for the specific performance of the contract.

The chancellor entered a decree dismissing appellant's complaint for want of equity as to the decree of foreclosure in the Madison chancery court. It was also decreed that his cause of action seeking to set aside the judgment in the Madison probate court should be dismissed without prejudice to any proceeding appellant might hereafter institute in the probate court in relation thereto. The case is here on appeal.

Decree reversed and cause remanded.

S. H. Sornborger, of Oklahoma, for appellant.

1. There was no service on the minor so as to give the court jurisdiction. The summons did not bear the official seal. Nor did the return of service even as amended show such service as to give jurisdiction. The summons was void. 6 Wall. 556, 18 Law. Ed. 948; 2 Ark. 131; 3 Id. 450; 6 Id. 452; 13 Id. 413. The writ was never amended and there was no appearance. 44 Ark. 404; 50 Id. 113; 22 Id. 362; 6 Id. 380.

2. The decree was entered before default in the installments; they were not due and there was no breach. 27 Cyc. 1451; 3 Litt. (Ky.) 404.

3. As to the second cause of action the court had no jurisdiction and the orders of the probate court should be set aside. Sand. & Hill's Dig., §§ 205, 209, etc.; 33 Ark. 727; Const. 1874., Art. 7, § 34.

W. N. Ivie, for appellee.

1. The absence of the official seal from the summons did not render it void. 22 Ark. 363. Only part of the evidence and part of the record is before this court and it will not disturb the decree. 81 Ark. 589. The presumption is that the decree was warranted by the evidence. 80 Ark. 74; 84 Id. 100; 86 Id. 368; 95 Id. 302.

2. The decree was not premature; besides no defense was made or alleged.

3. The probate court had jurisdiction of the second cause of action. Const. 1874, Art. 7, § 34; 33 Ark. 727; Sand. & Hill's Dig., § 205 to 209. No valid defense is shown and this is a collateral attack upon a decree rendered years ago. Kirby's Dig., § 4434; 90 Ark. 44; 49 Id. 397; 85 Id. 272. A judgment against an infant will not be vacated unless there was a valid defense even on a direct attack. This was a collateral attack and no fraud is alleged or shown. The court had jurisdiction and its judgment is conclusive. Massey v. Doke, infra 111.

S. H. Sornborger, in reply.

The probate court was absolutely without jurisdiction to enforce specific performance of an oral contract for the sale of a homestead, or contract for such sale in which the wife did not join. Probate courts have no chancery jurisdiction. If it is claimed special jurisdiction was conferred to enforce specific performance the jurisdiction must appear upon the face of the record. 54 Ark. 627.

OPINION

HART, J., (after stating the facts).

(1) It is claimed by counsel for appellant that the decree of foreclosure in the case of the Madison County Bank against the widow and minor child of Geo. B. Oliver, deceased, was void because the writ of summons was without the official seal of the clerk; but this court has decided adversely to him in regard to this contention. In the case of Rudd v. Thompson and Barnes, 22 Ark. 363, the court held that a writ of summons is not void for want of the official seal of the clerk and that it may be amended on application to the court. The court further held that if no application to amend has been made, the defect is ground of reversal of a judgment rendered by default but that the writ can not be treated as void.

Again it is contended that the judgment of the Madison chancery court foreclosing the vendor's lien on the property in controversy should be set aside because certain installments of the purchase money for which the decree of foreclosure was had were not then due and for the further reason that certain credits were not allowed which should have been allowed in that case. It must be remembered however, that this is a collateral attack on the decree. In the case of Whitford v. Whitford, 100 Ark. 63, 139 S.W. 653, the court held: "In determining the validity of a judgment upon collateral attack, a distinction must be observed between those facts which involve the jurisdiction of the court over the parties and subject-matter, and those quasi-jurisdictional facts, without allegation of which the court can not properly proceed and without proof of which a decree should not be made; absence of the former renders the judgment void upon collateral attack,...

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