Rankin v. Schofield

• Decision Date: 02 July 1906
• Citation: 98 S.W. 674,81 Ark. 440
• Parties: RANKIN v. SCHOFIELD
• Court: Arkansas Supreme Court

98 S.W. 674

81 Ark. 440

RANKIN v. SCHOFIELD

Supreme Court of Arkansas

July 2, 1906

Reversed and remanded.

Gustave Jones, P. R. Andrews, H. F. Roleson, N.W. Norton and U. M Rose, for appellant; Rose, Hemingway & Rose, of counsel.

1. The jurisdiction of each of our courts is derived from the Constitution alone. The Legislature can not change the jurisdiction of the court as prescribed by the Constitution. The jurisdiction of each court in its own peculiar sphere is original and exclusive. 5 Ark. 214; 14 Ark. 545; 3 Ark. 494; 45 Ark. 514; 1 Ark. 257; Ib. 275; 5 Ark. 37; 7 Ark. 75. The jurisdiction of the probate court in this class of cases is exclusive. Gantt's Digest, §§ 1184, 1185; 44 Ark. 269. In American courts the preponderance of authority is against the exercise of this jurisdiction by chancery courts. 3 Pom. Eq. § 1309; Bispham's Eq. § 550; 6 Am. & Eng. Dec. in Eq. 488, note. The power to sell the lands of an infant is purely statutory, and such sales without strict compliance with the law are nullities. Woerner, Guardianship, § 70.

2. A purchaser under execution or at a judicial sale must take notice of all that appears on the face of the judgment or decree under which he buys. The decree or judgment is an indispensable link in his chain of title. 10 Ark. 181; 36 Am Dec. 427; 2 Gilman, 151; 1 Id. 131; 2 Johns. 281; 13 N. Y. L. 271; 9 Am. Dec. 767; 11 Id. 704; 19 Id. 225; Ib. 535; 16 Id. 101; 22 Id. 486; 4 Wheat. 506; 23 Fed. Cas. 389; 2 Freeman Judg. § 509; 30 Ind. 332; 95 Am. Dec. 699; 3 How. 342; 6 Pet. 729. See, also, 98 Am. Dec. 551; 12 Id. 225. Wherever a decree shows fraud on its face, a purchaser under it can not be an innocent purchaser. 1 Minn. 183; 3 Id. 277; 44 Tex. 517; 9 How. 1.

3. The former decisions of this court in this case are the law of the case, and can not now, after the lapse of the term in which they were rendered, be changed. 5 Ark. 576; 6 Ark. 102; 26 Ark. 214; 56 Ark. 171. In the opinion handed down the court, when, in effect, they hold that a guardian has the power to compromise all suits of whatever kind against his ward, and that the compromise in this case is valid, assert precisely the reverse of what has been twice previously asserted in this case. 71 Ark. 173; 70 Ark. 84. It is plain that no appeal will lie from a consent decree. 2 Enc. Pl. & Pr. 99; 32 Ark. 74.

And it is also plain from the judgment formerly rendered that this court held that the decree appealed from was not valid--was in fact no decree. A judgment rendered now, inconsistent with that heretofore rendered, can be set aside on motion, because void for want of jurisdiction. 14 Ark. 203.

The decree in this case was rendered in 1889. There is no change in its legal effect from what it was on former appeal. Had its recitals been incorrect, plaintiffs would have moved to amend; yet that could not have been allowed, for they were barred of that right by limitation. 4 Ark. 629; 20 Ark. 377; 19 Ark. 16. Such amendment could only be made on proper application and notice. 51 Ark. 323; 20 Ark. 635; 23 Ark. 18; 34 Ark. 300; 72 Ark. 185.

4. The "family settlement" decree was fraudulent. Whenever a judgment is obtained through a violation of duty by a guardian, it is fraudulent in law, may be impeached in chancery, and collaterally. 1 Big. Fraud, 90; Broom, Leg Max. 341, 736; 93 U.S. 167; 16 Wall. 365; 2 Freeman, Judg. §§ 486, 489; 129 U.S. 99; 111 U.S. 667; 17 Ark. 512; 65 Ark. 566; 73 Ark. 281; Ib. 444. Confirmation does not condone fraud. 10 W.Va. 143; 23 Gratt. 423. A fraudulent judgment is a nullity, and bars no one. 28 La.Ann. 333; 39 Tex. 168; 33 Ark. 429. A purchaser acquires a valid title under a judgment only when it is valid on its face, and apparently free from fraud. 72 Ark. 304; 38 Ark. 196.

5. There can be no decree without judicial action. 1 Big. Fraud, 93; 2 Daniell, Ch. Pl. & Pr. 986; Black. L. D. 841. In this case a judicial investigation was purposely avoided, out of considerations of mere expediency, as was declared by this court. 71 Ark. 173.

The purchaser at a guardian's sale must make inquiry as to the title, and the guardian's authority to sell. 32 Ark. 324. Without the order of a court of competent jurisdiction, a guardian has no authority to compromise in behalf of his ward. Woerner, Guardianship, 184.

6. The guardian had no power to compromise. The rights of infants can in no case be affected except upon issues and proof. 39 Ark. 237; 43 Ark. 428; 47 Ark. 456; Ib. 300; 31 Ark. 233; 70 Ark. 84; 71 Ark. 173; 97 N.W. 863, and cases cited; 15 Am. & Eng. of L. 57; 47 Ark. 297; 53 Ark. 307; 10 Enc. Pl. & Pr. 589. The rights of infants can not be confiscated by consent decrees, even without a statute. 1 S.E. 605; 13 S. & M. 137; 9 Humph. 129; 102 U.S. 312; 158 U.S. 146. If a guardian exceeds his authority, even with the consent of the chancellor, the decree is void. 8 How. 669.

7. The decree is void because not based on the pleadings. 7 Ark. 516; 93 U.S. 282; 55 Ark. 205; Ib. 565; 30 Ark. 628; 13 Ark. 188; 11 Ark. 135; 46 Ark. 103; 41 Ark. 394; 12 Ark. 288; 9 Pet. 415; 24 Ark. 381; 29 Ark. 500; 12 Ark. 288; 24 A. 229. Such being the case, it is not material whether L. B. McDonald knew that it was void or not, for "in legal effect it is no judgment. By it no rights are divested. From it no rights can be obtained," etc. 58 Ark. 186. See, also, 62 Ark. 443.

A judgment of a court outside the issues presented is a nullity. 4 Coldw. 621; 93 U.S. 282; 55 Ark. 565; Ib. 205; 109 U.S. 267; 68 F. 44; 56 Ark. 422; 64 Ark. 301.

In partition proceedings, to give the court jurisdiction to order a sale, it is indispensable to allege that the lands in question can not be divided without loss or injury to the parties. 50 Md. 570; 3 Wend. 15; 55 Ark. 565; 13 Pet. 174; Kirby's Digest, § 3801. As to the partition proceeding, there was not only a failure to state a cause of action, but an affirmative showing of no cause of action. Therefore the decree will be treated as void, whether atacked directly or in a collateral proceeding. 62 Ark. 443; 11 Wall. 350. Legal presumptions must be based upon facts, and it will not be presumed that the facts are otherwise than as shown by the record. 11 Ark. 236; 56 Ark. 17; 50 Ark. 390; 55 Ark. 216.

8. In the opinion handed down it is intimated that there is a doubt as to whether the rights of appellant are not barred by limitation. They are not barred. An infant may show cause against a decree within twelve months after arriving at the age of twenty-one years. Kirby's Digest, § 6248.

When the Civil Code, of which this section is a part, was adopted, a female attained her majority at the age of twenty-one. Though by the act of 1873 she attains majority at the age of eighteen, the Legislature has made no change in the above section, and the court can not change it. 42 Ark. 308. Nor can it supply any supposed defect in legislation. End. Stat. §§ 18, 22. See, also, 49 Ark. 416; 70 Ark. 415. Compare Carroll, Ky. Codes, § 391. When a statute is revised, or one act framed from another, some parts being omitted, the parts omitted are not to be revived by construction, but are to be considered as annulled. 42 Me. 55; 1 Pick. 44; Ib. 155; 2 Crawford's Digest, Col. 1713; Ib. Col. 1700. Even if L. B. McDonald should be held as an innocent purchaser, it would be requisite to render a decree against the plaintiffs in the "family settlement" decree for the value of one half of the land confiscated under that decree as prayed in the petition for restitution. 65 Ark. 556. On such a demand the statute does not begin to run until after reversal of the decree. 2 Freeman, Judgts. § 482. The five years statute has no application. It was a part of the Revised Statutes of 1838, while the statute authorizing infants to show cause against judgments went into effect in 1869, and subsequent laws repeal those before enacted to the contrary. Broom, Leg. Max. 27.

J. M. Moore and W. B. Smith, for appellees.

Examination of our statute, Kirby's Digest, § 6248, and § 391, Ky. Code, cited by appellant, shows that ours is not a copy of the Kentucky statute, but it is a literal copy of section 386, Civil Code, Ohio. See Swan's Stat. Ohio, 671. The Supreme Court of that State has held that the title of a purchaser of real estate sold by an administrator to pay debts is not divested by a subsequent reversal of the order of sale. 3 O. St. 389. In a proceeding to set aside a sale of the lot of an infant by a guardian under an erroneous order of the probate court, held that error did not affect the jurisdiction of the court, nor render the sale void, nor affect the title of the purchaser. 26 O. St. 636; 42 Ohio 259. It therefore appears that the court of that State did not construe the act of that State as affecting the rights of purchasers at judicial sales, and, unless given that effect, it would not in any way affect the operation of the statute of limitations. Since that statute was passed and the case first cited was decided long prior to the enactment of the statute of this State, this court should follow the Ohio rulings.

The statute has no application to a sale in partition. A judgment in partition is as effective against an infant as against an adult, the only difference being that the infant has a more extended right to set the decree aside upon a showing of merit; but if he succeeds, he can not take the land from an innocent purchaser at the judicial sale. 55 Ark. 492.

The only object of the statute was to extend the time within which an infant might have his remedy. It does not purport to enlarge his rights in other respects, neither was it the intention of the Legislature to impair the sanctity of judicial sales. It follows that the statute can have no application to the statute of limitations applicable to...