Clay v. Barnes, 121 Ark. 474

Clay v. Barnes

121 Ark. 474 | Ark. | 1915

Kirby, J.,

(after stating the'facts). (1) It appears from the allegations of the complaint that appellees are in possession -of the lands -and claiming them through the commissioner’s deed executed under the decree of the chancery court against L. W. White, and others, foreclosing the lien for overdue taxes in a drainage district at the suit of the collector, the appellant claiming to be the owner of the lands by conveyances from said L. W. White. The collector was the proper party to bring the suit for the collection of the delinquent taxes under the provisions of the law under which the district was established.

The complaint alleges -that the decree of the chancery court foreclosing the lien of the drainage district for faxes is regular .and valid and the sale and commissioner’s deed thereunder likewise valid, insofar as shown by the -record of the case and that the invalidity of the decree for want of the alleged notice and of the commissioner’s deed, “does not appear upon the face of the judgment or decree or upon the record in the cause, but must be established by evidence aiiunde.”

The purpose of the suit as disclosed by the complaint is to set aside the decree and cancel the deeds of the commissioner .and other grantors of appellee, as clouds upon appellant’s title and for possession of the lands claimed.

(2) It is not a proceeding in the original suit in any. direct manner, to have such judgment vacated for any of the grounds authorizing vacation of judgments under the statute, but is an independent proceeding merely, having as its chief purpose the gaining of the possession of the lands claimed and the cancellation of the conveyance to appellee as a cloud upon the title. Such proceeding constitutes no more than a collateral attack upon the said decree of the chancery court, under which the land in controversy was condemned and sold. Cassady v. Norris, 118 Ark. 449, 177 S. W. 10.

(3) Every presumption will be indulged in favor of the jurisdiction of such court and the validity of the judgment which it enters, and unless it affirmatively appears from the record itself that the facts essential to the jurisdiction of such court did not exist, such collateral attack against the judgment rendered by it can not prevail. Crittenden Lumber Co. v. McDougal, 101 Ark. 390.

The decree attacked recites that the parties were duly served with process as required by law, and the complaint itself alleges that it and the commissioner’s deed at the sale thereunder are in all respects regular and valid so far as shown by the record of the case, thus showing conclusively that the want of notice and defects complained of, are not such as can prevail against a judgment or decree regular upon its face in a collateral attack.

In the court’s view of the law of this case above announced, it becomes unnecessary to decide the other questions raised, and the allegations of the complaint not being sufficient to constitute a cause of action, the court did not err in sustaining the demurrer. The decree is accordingly affirmed.

Justices Hart and Smith dissent.