Blanton v. Rose

| Ark. | Mar 22, 1902

Wood, J.

The questions are:

First. Could the infant appellees avoid the original decree as against the representative of the Rose estate?

Second. Could they avoid it as against the appellant Blanton ?

Third. Could Mrs. Ada Neal avoid the decree?

1. The proof shows that the land in controversy was the property of Vachel Rose at the time of his death. This is sufficient to entitle the appellees, the infant heirs of Yachel Rose, to the relief sought, as against the representative of the W. B. Rose estate.

2. Section 5871, Sand. & H. Dig., is as follows: “It shall not be necessary to reserve, in a judgment or order, the right of an infant to show cause against it after his attaining full age; but in any case in which, but for this section, such a reservation would have been proper, the infant, within twelve months after arriving at the age of twenty-one years, may show cause against such order or judgment.” The statute is notice to all the world in cases where it applies, and there can be no such thing as an innocent purchaser in those eases. Nor can anyone plead protection by virtue of title acquired under a decree of court. Decrees, however, regularly obtained, are not void, but only voidable for cause. Houston v. Aycock, 5 Sneed, 406, 415.

To what cases does the statute apply ? Where the effect of the decree is to divest the infant of an interest in land, or where a conveyance is required of an infant in lands where he has a personal interest under the ancient chancery practice, it would have been proper in such cases to reserve in the decree a day for the infant to show cause against it after becoming of age. “I take it to be the course of the court,” says Lord Chancellor Hardwicke, “not to give any day unless a conveyance is directed in form or substance.” Sheffield v. Buckingham, West’s Rep. 684; Napier v. Lady Effingham, 2 P. Wms. 403; Cary v. Bertie, 2 Vern. 342; Eyre v. Countess of Shaftesbury, 1 P. Wms. 403; 1 Dan. Ch. Pr. 165; Dow v. Jewell, 21 N. H. 490; Long v. Mulford, 17 Ohio St. 484, 506; Harris v. Youman, Hoff. 178; Pope v. Lemaster, 5 Litt. (Ky.), 77. Under the old English chancery,where there was a foreclosure— strict foreclosure — the infant had his day in court after coming of age. Sayle & Freeland case, 2 Ventris, 350; Price v. Carver, 3 M. & C. 162, 3. “But in the ease of decrees for the foreclosure and sale of mortgaged premises, or for the sale of lands under a devise to pay debts, the infant had no day.” 2 Kent, Com. 245; Booth v. Rich, 1 Vern. 295; Scholefield v. Heafield, 7 Simons, 667; Cooke v. Parsons, 2 Vern. 429; 1 Dan. Ch. Pr. 165 et seq.; Wilkinson v. Oliver, 4 Hen. & Munf. 150, and other cases cited in Am. Ch. Dig. (Decree), 497; Mills v. Dennis, 3 Johns. Ch. 367" date_filed="1818-06-15" court="None" case_name="Mills v. Dennis">3 Johns. Ch. 367, and cases cited in note.

The reason for the distinction and the policy of the statute does not concern us here. It follows that the infant appellees could avoid the decree as to appellant Blanton. The case of Moore v. Woodall, 40 Ark. 42" date_filed="1882-11-15" court="Ark." case_name="Moore v. Woodall">40 Ark. 42, and Boyd v. Roane, 49 Ark. 397" date_filed="1887-05-15" court="Ark." case_name="Boyd v. Roane">49 Ark. 397, relied upon by appellee, are not in point; The question under consideration was not raised or discussed in those cases. Moreover, in both a sale of the land was decreed to satisfy liens.

3. Mrs. Ada Neal was under no disability when the decree in favor of W. B. Bose was rendered. Blanton was an innocent purchaser for value of the dower interest of Mrs. Ada Neal, which passed by the original decree, and he is entitled to have the same assigned to him. Weaver v. Rush, 62 Ark. 51" date_filed="1896-02-08" court="Ark." case_name="Weaver v. Rush">62 Ark. 51. The decree is affirmed as to the infant appellees. As to 'the appellee Mrs. Ada Neal, the decree is reversed, and the cause is remanded, with directions to have her dower interest in the lands in controversy set apart and passed to appellant Blanton.