| Ark. | May 15, 1887
John Selden Roane died in 1867 seized of a large plantation, upon which he resided, in Jefferson county, Arkansas, known as “ Contentment.” At the time of his death his plantation, consisting of about 1335 acres of land, was encumbered with a mortgage to one Powell, and also in part with a Real Estate Bank mortgage. In 1868 suit was instituted in the Circuit Court of Jefferson county, in chancery, to foreclose the Powell mortgage. The widow and heirs at law, and the administrator of the estate of Roane, were made parties defendant to the bill. The heirs were all minors. Process issued for all the defendants in February of the same year; a guardian ad litem was appointed by the court for the infant defendants; in Januar}', 1869, a decree foreclosing the mortgage was rendered; a sale was made by the court’s commissioner, and A. M. Boyd, the appellants’ ancestor, and one Walt, became the purchasers. Walt sold his interest in the lands to his co-purchaser, Boyd, and is not concerned in this litigation. The widow’s dower was afterwards assigned, and Boyd purchased her interest in the land. He entered into possession of the entire tract known as the “ Contentment Place,’’ soon after his purchase at the commissioner’s sale. Afterwards he discovered that the description of the land in the commissioner’s deed, as well as in the decree of foreclosure, was inaccurate except as to about 300 acres of the tract; and in September, 1871, he filed a bill in the Jefferson Circuit Court to correct the -error and quiet his title. The 'administrator of the estate and the heirs of Roane, who were still infants, were made defendants; process to bring them into court was regularly served and a guardian ad litem was appointed for the infants, who appeared and answered.
The mistake in the description arose in this way: Two tracts were described in the mortgage as survey No. 24, in section 26, containing 640 acres, and survey No. 24, in section 23, containing 400 acres, all in the same township and range as that which was correctly described; when the proper description, it seems, was as follows: Survey No. 2426, of Piere Derosier, 640 acres, and survey No. 2423 of Louis Levy, 437Í acres, together with other lands in the same township and range, making an aggregate of 1335 17-100 acres. The mortgage, however, after the inaccurate description above given, concludes thus: “containing in all 1335 and X 7-1OO acres of laud, together with all and singular the improvements thereon, being the plantation known as Contentment, situated in Jefferson county.” In this second suit the court, “ after hearing the evidence adduced,” as the record recites, found that the mortgage bound the “ Contentment Place,” which is there accurately described, and that it had been sold by the commissioner under the decree; and thereupon decreed Boyd’s title absolute as against all the parties to the suit, and forever enjoin them from maintaining any action against him for or concerning the lands embraced in the proper description of the “ Contentment Place,” and formally quieted his title and possession. Boyd remained in possession of the lands. He discharged the mortgage to the Real Estate Bank which was an encumbrance upon a part of them when he purchased, by paying into the State treasury the sum of $14,171.20 in State scrip. Roane’s estate was insolvent. Neither the administrator nor the creditors laid claim to the “ Contentment Place ” as assets, after the sale under the decree of foreclosure. But in 1884, while the youngest heir was still a minor, but more than one year after the next youngest had attained the age of twenty-one years, the heirs joined in a complaint in the Jefferson Circuit Court, in chancery, against A. M. Boyd, to set aside the two decrees above mentioned, to have an account of the rents and to oust Boyd of the possession. It is this last litigation that now comes to us by appeal.
The suit, as far as the infant heir is concerned, is; as is claimed by counsel for the appellees, a statutory proceeding to show cause against the decrees under subdivision 8, of section 3909, of Mansfield’s Digest, while as to the adults, it is a bill of review resorted to for the purpose of vacating the decrees to enable them to redeem.
The complaint sets forth all the facts above detailed, and alleges that the decree of foreclosure under the Powell mortgage is void and of no effect whatever, because, as it alleges, there was no service of process on any of the parties who are now complainants in this suit, but who were defendants in the suit to foreclose. It is further alleged that no defence was made for the infants in that suit; that no proof was adduced at the hearing; that the decree did not in fact describe the lands, and that the second decree being in aid of one that was void, could not rectify it, and that the latter was itself erroneous, because the answer of the guardian ad litem was not a proper denial of the allegations of the bill in that case, and further, because the only proof adduced upon the hearing was by ex parte affidavits.
Creditors of the estate of Roane, whose claims had been probated, were, upon petition, - made parties and filed an answer and cross complaint laying claim to the estate as assets for administration. The material facts outside of the record evidence were agreed upon by counsel, except as to the want of service of process on the minors in the foreclosure suit; and Mrs. Roane, the mother of the complainants, was examined as a witness to prove that no process had ever been served on the minors in the suit to foreclose the Powell mortgage. The summons, which the Clerk’s indorsement upon the complaint showed had been issued for all the defendants at the institution of the suit, could not be found. The Chancellor found, from the evidence, that there was no service of summons ori the complainants here in the first suit, and that the decree in that case was for that reason a nullity; and set aside the second decree because, as he found, a proper answer was not filed or a proper defence made for the minor defendants. He also declared that the mortgages had been discharged by the rents which Boyd had enjoyed; awarded the possession to the complainants, and after a reference to a master rendered a personal decree against Boyd for rents and profits to the amount of $21,000. Boyd shortly afterwards died, and his heirs and personal representative have appealed.
It is contended for the appellants that inasmuch as infants are regarded as the wards of chancery and the court acts as guardian pro hac vice of the infant where the property to be affected and the infant owner are subject to the court’s jurisdiction, actual notice to the infant is not essential to the exercise of jurisdiction (see Insurance Co. v. Bangs, 103 U. S., and cases cited), and that conclusion would seem to follow from the reasoning of Judge Scott in Borden v. State, 11 Ark., 519, determined in 1851, if indeed it may not be inferred therefrom that notice in no case is an absolute prerequisite to the exercise of jurisdiction by a superior court having authority over the subject matter. See Holland v. Burns, 28 Ark., 174; Montgomery v. Johnson, 31 Ark., 81-2. The principle that the jurisdiction of superior courts will be presumed to have been properly exercised is ably stated in that case, though the reasoning employed, if not confined to the facts under consideration, might push the doctrine beyond its legitimate sphere. The fear of this was doubtless the cause of the enactment of the act of February 17, 1859 (Mansf. Dig. sec. 5201), which in terms declares all judgments, orders, sentences or decrees pronounced by any of the courts of this State against any one without notice, actual or constructive, together with all the proceedings had thefeunder, absolutely null and void. This act has never received an express construction from this court, but it has not been permitted by the court to change the doctrine of Borden v. State in analogous cases, even where the want of notice appears of record. Borden v. State was a case, however, of a judgment of a Probate Court — a superior court under our law — whose jurisdiction is obtained over the estate of a decedent as well as the person of the administrator by the grant of letters of administration. Adams v. Cummins, 10 Ark., 549; Sturdy v. Jacoway, 19 id., 515; Adams v. Thomas, 44 id., 267. And although previous notice of some of the steps to be taken in the course of administration is required by the statute, it has been steadily ruled, as well since the act as before, that the neglect to observe these require-merits does not render the judgments or orders of the court void, but only voidable. The proceedings for the sale of the assets of a decedent's estate, as well as certain proceedings in the County Court, are treated as in the nature of proceedings in rem. (Adams v. Thomas, sup., and cases cited; Howard v. State, 47 id., 438), and for this reason it may have been regarded that this class of cases did not fall within the letter of the act. But whatever the reason, Borden v. State has been adhered to so often since the act as to render the doctrine it lays down a rule of property not to be disturbed by the courts at this day. See Adams v. Thomas, supra, and cases cited ; Montgomery v. Johnson, 31 id., 823. But neither this consideration nor the reasons that may be adduced to prevent the application of the statute to the class of cases to which it has not been extended, hinders the application of its plain mandate when the question arises in regard to a judgment pronounced in an adversary suit, either at law or in equity. Such ajudgment without notice is absolutely void. Sec. 5209, sup.; Shaul v. Duprey, 48 Ark., 334; St. L., I. M. & So. Ry. v. Richter, id., 349; Wingfield v. McClure, id., 500; Giles v. Hicks, 43 id., 271.
The terms of the act apply as well to an infant as to an adult. The authorities cited to sustain the position that the infant need not be personally notified, are therefore met by the positive requirement of the statute. If, then, the decree of foreclosure can be said to have been rendered without notice to the infant defendants, it is void, and the purchase under it conveyed no title to the lands sold. Whilst the authorities, without the aid of statutes, generally pronounce judgments without notice void, yet there is a lack of harmony upon the question how the want of notice must be made to appear in order to have the effect of nullifying the judgment.
“J. J. Bushy v. M. L. Bell et al:
“ Now on this day this cause came on to be heard, and come the parties to said cause, by their respective attorneys, and by consent it is ordered,” etc.
It is argued that this is a decree against the administrator, Bell, alone. But the record in that case discloses that process issued for the infant defendants and that a guardian ad litem was appointed to defend for them. The presumption is indulged that the court would not have appointed the guardian ad litem and proceeded to judgment without the service of summons. Brackenridge v. Dawson, 7 Ind., 385; Horner v. Doe, 1 id., 130; Borden v. State, sup., 570. And if summons was served, and we apply the rule which governs on appeal or writ of error where the design is merely to secure the observance of the due course of law, and where public policy does not require the courts to be fettered by any presumption calculated to shut out the truth, the phrase “ et alios ” must be construed to refer to all the defendants who have been served. Neel v. Singleton, 26 Ark., 491; Davis v. Whittaker, 38 id., 438; Williams v. Bankhead, 19 Wall., 570; Wilson v. Nance, 11 Humph., 189. The presumption then, from the recital of the decree, is that the "infants in that suit, or their guardian «¿i litem for them, appeared by attorney, after service of process on the infants. But they undertook to prove, and the Chancellor found the fact to be, that this presumption of service had been overturned by parol proof that no service was in fact had upon the minors.
It is not necessary that jurisdictional facts should appear of record in a court of general jurisdiction. That was the main question at issue in Borden v. State, and the previous cases of this court holding that the facts must so appear were there overruled. Baskins v. Wyld, 39 Ark., 351-2; Byrd v. Clendennin, 11 Ark., 572; Harrison v. Lamar, 33 id., 828; Applegate v. Lexington, 117 U. S., 269. The repeated assertion of this court that a judgment of a court of competent jurisdiction can be impeached only on appeal or writ of error or in some direct proceeding taken to vacate it, precludes the idea that evidence outside of the record can be heard for that purpose. The case of Cato v. Stewart, 28 Ark., is authority in point. That was an unsuccessful attempt to contradict the recital of a domestic judgment to the effect that the defendant had appeared by attorney. The fact of service here, however, is raised by presumption and not proved by recital. But the better opinion would seem to be, say the learned annotators of Smith's leading Cases, “ that the silence of the record will not make way for evidence that would not have been admissible if it had spoken,” and they cite Borden v. State as authority to that point. 1 Smith’s Leading Cases, (part 2, 8th ed.,) p. 1139. “To say,” continue the annotators, “that the record is void unless it contains an entry ot the service of process, and yet hold that a false entry that process has been served will preclude inquiry or denial, would seem to be equally inconsistent with itself and with reason. Every entry of record derives its-weight from the same source, and an entry of judgment should have at least equal authority with an entry of service.”
Authority and reason sustain the position that the presumption of service which is raised by the record in this case is as conclusive as the recital of service, and cannot be contradicted by evidence aliunde. Williams v. Bankhead, 19 Wall., 570; Wilson v. Nance, 11 Humph., 189; Little v. Birdwell, 27 Tex., 692; Galpin v. Page, 18 Wall., 365; Reinig v. Hecht, 58 Wis., 212" date_filed="1883-09-25" court="Wis." case_name="Reinig v. Hecht">58 Wis., 212; Pratt v. Dow, 56 Me., 81; Wandling v. Straw, 25 W. Va., 699; Pope v. Harrison, 16 Lea, 82; Anderson v. Wilson, 100 Ind., 402" date_filed="1885-02-12" court="Ind." case_name="Anderson v. Wilson">100 Ind., 402; Hahn v. Kelly, 34 Cal., 402; Boardman v. Toffey, 117 U. S., 270; Turrell v. Warren, 23 Minn., 9; Coit v. Haven, 30 Conn., 198; Long v. Brenneman, 59 Tex., 212; Freeman on Judgments, secs. 131-2.
Whatever may have been the design of the second section of the act of 1859 (as to which see Coons v. Throckmorton, 23 Ark., 60), which declares that a recital of notice in the record shall be evidence of the fact (Mansf. Dig., sec. 5202), it is only declaratory of the law as announced in Borden v. State, and works no change in the rule of evidence in this class of cases.
It follows that the decree foreclosing the Powell mortgage must be regarded as pronounced after service of process upon and appearance by the parties who are plaintiffs in the present suit, and we are to inquire what is the effect of the other objections urged against its validity.
The case of Trapnall v. State Bank, 18 Ark., 53, is in point. There a judgment was attacked upon the ground that the court had rendered judgment of recovery in personam against an infant without first appointing a guardian to defend for him. If no guardian was appointed of course there was no defence by guardian. The judgment was held to be voidable but notvoid. See, too, note to Mills v. Dennis, Ewell Leading Cases, p. 234 et seq. Nor are cases lacking to the effect that to render judgment upon the consent of, or without proof against, an infant, is only an erroneous exercise of jurisdiction, and does not invalidate the judgment. Ewell Lead. Cas., supra; Walsh v. Walsh, 116 Mass., 382.
This brings us to the consideration of the effect of the second decree upon the defect in the description of the lands condemned to be sold by the first. Counsel for the appellees have made no point here against the validity of the first decree upon the ground of the misdescription, and we need only say that the description of the land in the mortgage as the mortgagor’s “ Contentment place, in Jefferson county,” carried the 1335.17 acres embraced in that place, notwithstanding the more particular description was in part inaccurately made. Montgomery and wife v. Johnson, 31 Ark., 74.
The Supreme Court of Kentucky in construing a provision of the statute identical with that under which the infant here is proceeding, say the errors contemplated by the statute “are such as affect the substantial rights of the infants, and to obtain relief, they must show that actual injustice has been done them.” Richards v. Richards, 10 Bush., 617.
No effort was made to show that injustice was done to the infant by either decree, or that any defence exists to either of them. No suggestion of fraud, accident or mistake has been made. To set the second decree aside when there is no defence to either suit, would accomplish nothing, for the first decree which in fact divested the title would remain intact, and it would be incumbent upon the court to re-enter the second correcting the clerical misprision of the first.
We have not considered what rights, if any, the infant, Hugh Roane, may have as against the plaintiff in the Powell foreclosure. He was made a party defendant to this proceeding but did not appeal. As to the heirs and representatives of Boyd, the decree of the Jefferson Circuit Court in favor of the appellees must be reversed and their bill dismissed, and it is so ordered.