Rankin v. Schofield
| Decision Date | 02 December 1905 |
| Citation | 98 S.W. 674,81 Ark. 440 |
| Parties | RANKIN v. SCHOFIELD |
| Court | Arkansas Supreme Court |
Appeal from Woodruff Circuit Court; Thomas B. Martin, Special Judge affirmed.
STATEMENT BY THE COURT.
In 1882 Betty Gibson obtained in the Woodruff Circuit Court a decree of divorce from her husband, J. N. S. Gibson, known as "Spott" Gibson, on the ground that he was insane. The decree gave Mrs. Gibson the custody of their child Sallie Spott Gibson. On the 5th day of April, 1884, Gibson died in Woodruff County, leaving an estate of personal and real property. On the 27th day of the same month L. D. Snapp was appointed administrator of the estate, and took charge of it. On the 2nd day of of July, 1886, Octavia Mitchell and others, sisters and nephews of Gibson, filed a complaint in equity in the Woodruff Circuit Court against Sallie Spott Gibson, her guardian, J. P. Fourshee, and her mother, Bettie Harwell, wife of W. A. Harwell, formerly wife of Gibson. Plaintiffs alleged that they were the heirs of Gibson, that Gibson at the time of his marriage was impotent, and so remained, and that the child, Sallie Gibson, was not Gibson's child, but was the natural child of some person unknown to plaintiffs, and that J. C. Fourshee had been appointed her guardian. They further alleged that Mrs Harwell was not entitled to dower in Gibson's estate that the personal estate of Gibson had been administered that only $ 631 of debts of the estate remain unpaid, and that the administrator held possession of the lands of the estate. They prayed that the rights of the plaintiffs to the land be determined by the court, that a commissioner of the court state an account showing the amount of debts of the estate for which the lands of the estate are bound, and that, upon payment thereof by the plaintiffs or an extinguishment thereof by the rents of the lands, the lands be partitioned between plaintiffs according to their rights, and "for all other and proper relief."
Sallie Spott Gibson appeared by her guardian, J. P. Fourshee, and filed her answer, in which she denied the allegations of the complaint, and alleged that she was the legitimate child of Gibson and Bettie Harwell, and their only heir, and prayed that the complaint be dismissed, and "for such other relief as she may be entitled to."
Mrs. Bettie Harwell also filed an answer in which she denied that Gibson was impotent, and alleged that Sallie Spott Gibson was the legitimate child of herself and her former husband, Gibson, and entitled to estate, subject to dower and homestead rights. She admitted the decree of divorce, but alleged that it was void, and did not affect her rights in the estate of Gibson. She asked that the complaint be dismissed for want of equity, and that "' commissioners be appointed to lay off the homestead, giving her 160 acres of the land and the mansion house and one-third of the remaining portion of the land during her natural life, and for such and further relief as she may be entitled to."
The depositions of many witnesses were taken, bearing on the question as to whether Gibson was impotent or not at the time of his marriage to Bettie Fourshee and afterwards, and whether or not he was the father of Sallie Spott Gibson. Some of the witnesses testified positively that Gibson had been castrated before his marriage and was impotent. Others testified positively to the contrary.
On hearing, the court, after counsel had argued the case, took the matter under consideration. Before he announced his decision the parties came to an agreement, and a decree was then entered by consent. The decree, after reciting the allegations of the complaint and denials of the defendants, proceeds as follows:
"And it appearing that numerous depositions have been taken, and the litigation herein is likely to be long and tedious of family matters; now, therefore, in order to put an end to litigation, and as an amicable adjustment and settlement of a family affair in regard to the descent, inheritance and settlement of the right of plaintiffs and defendants in regard to all the real and personal estate of the said J. N. S. Gibson in the hands of said administrator, it is hereby ordered, considered and decreed by the court, as well as by the consent and agreement of all parties hereto, both plaintiff and defendants, that said estate be equally divided, giving the plaintiffs one-half thereof, and the defendants, Sallie Spott Gibson and Bettie Harwell, as their rights may appear, the other half, and that the administrator file a settlement of said estate, including the rents of 1889, to be approved in the probate court of Woodruff County; that said lands be sold by W. E. Ferguson as special commissioner, etc."
This decree was rendered in February, 1889, and the land was sold by a commissioner appointed by the court at public sale in 1889 to L. B. McDonald. The sale was duly reported to the court and confirmed, and a deed conveying the lands to McDonald was executed by the commissioner and approved by the court in February, 1892.
When Sallie Spott Gibson came of age, she took an appeal from the decree under which the land was sold, and the decree was reversed, and the cause remanded for further proceedings. After the case was remanded Sallie Spott Gibson, who had married Rankin, filed a petition for restitution against Antoinette Bond and other heirs of L. B. McDonald, who was now dead. She alleged that the decree under which McDonald purchased and took possession of the lands owned by Gibson was void, and prayed that she have restitution of the lands owned by Gibson and for an account of all rents and profits received, and that she have judgment therefor.
Antoinette Bond and the other defendants appeared and filed an answer in which they denied that the decree under which McDonald purchased the land was void, but alleged that while it was in full force and effect the land was offered for sale under it by the commissioner of the court, and purchased by McDonald for the sum of $ 14,050, he paying one-third cash, and the balance in one and two years after the sale; that he was an innocent purchaser for value, that he took possession and made valuable improvements in good faith; and that by his purchase he obtained a good and valid title to the land. They also pleaded the statute of limitations both for seven and five years, and asked that the petition for restitution be denied.
The court found that Sallie S. Rankin was the legitimate daughter of Gibson and his wife, Bettie Gibson, that the decree under which the lands were sold, though erroneous, was not void, and that L. B. McDonald acquired a valid title to the land against all parties to that suit, and gave decree accordingly, from which judgment Mrs. Rankin appealed.
Judgment affirmed.
Gustave Jones and Rose, Hemingway & Rose, for appellant; H. F. Roleson, P. R. Andrews and N.W. Norton, of counsel.
1. The decision on the former appeal (71 Ark. 172) settled, first, that the decree under which the lands were sold was invalid as a consent decree; second, that it was invalid because it was not the emanation of a judicial mind. That decision is the law of the case, even if wrongly decided. 63 Ark. 141; 10 Id. 186; 13 Id. 103; 16 Id. 168; 29 Id. 174. The lower court had no authority to review the judgment of this court. 1 Ark. 436; 18 Id. 292; 26 Id. 17; 5 Id. 200; 60 Id. 55. This court will review or correct its former decision on second appeal. 14 Ark. 427; 63 Id. 141; 67 Id. 483. Appellees are bound by admission of record as to appellant's legitimacy. 15 La. 363. Such admission may read in any other suit on any other issue. 68 Ga. 218; 74 Cal. 191; 55 Ark. 85; 54 Am. Dec. 628; 26 Ala. 363; 2 N.C. 420; 1 Green. Ev. § 195; 43 Am. Dec. 300; 11 Md. 396; 27 Id. 210; 33 Id. 157; 143 U.S. 28; 22 Wall. 32; 50 Ala. 63; 15 A. 433. If an offer to compromise contains an independent admission of a fact, because it is a fact, it will be received. 1 Green. Ev. § 192; 19 La. Am. 362; 43 Id. 1062; 13 S. & M. 443; 63 Pa.St. 24; 20 Am. Dig. column 1086. That the "family settlement" was void, does not affect the admission. 33 Ark. 593; 48 Id. 243; 77 N.W. 908; 44 P. 658; 1 Green. Ev. § 27. The judgment of the probate court granting letters of administration to Snapp, if not reversed or vacated, estops the McDonald from claiming any interest in the estate of Gibson. 13 Wall. 465. Plaintiffs will not be permitted to occupy inconsistent positions. 57 Ark. 632; 96 U.S. 267. Whatever was admitted on former appeal can not be denied on the present appeal. 9 Ark. 532.
A decree procured through fictitious or evasive proceedings is fraudulent and void. 126 F. 119; 54 P. 218; 129 U.S. 86. A judgment by confession, to be valid, must be entered in a court having jurisdiction over the parties and subject-matter. 2 Freeman on Judgments, 547. Consent can not confer jurisdictinn. 49 Ark. 443. Where the record discloses that the court had no jurisdiction of the proceedings, any judgment rendered in it is void. 9 Ark. 73; 29 Ark. 188; 38 Id. 159. A court of equity has no inherent power to direct the sale or mortgage of the real property of infants. 42 N.E. 11. Such sale is void, and passes no title. 6 Hill 415; 75 S.W. 232; 29 S.E. 1014, 59 S.W. 862. The power to sell the lands of an infant depends upon the Constitution or on statutes. 47 N.Y. 27; 80 S.W. 797. The requirements of the statute providing the method by which an infant's lands may be sold must be strictly pursued to validate such sale. 12 N.E. 592; 65 N.Y. 294; 75 Ga. 95; 39 Ark. 237. Equitable jurisdiction can be exercised only where the relief offered by the probate court is inadequate or imperfect, or where its proceedings have miscarried through fraud, accident or mistake. 49 Ark. 55. Constitution of 1874 fixed...
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