98 Ark. 151 | Ark. | 1911
The chancellor sustained a demurrer to the complaint in this case, and the plaintiffs appealed from the final decree dismissing the complaint. It is alleged in the complaint that plaintiffs, some of whom are minors, and the defendant A. H. Glasscock, and certain other heirs at law of H. W. Glasscock, deceased, were the owners as tenants in common of a large body of unimproved lands in Greene County, Arkansas (containing about 22,000 acres) ; and this proceeding was instituted to set aside the sale of said lands under a former decree of the chancery court of Greene County directing the sale thereof for a division of .the proceeds. The record of the former proceedings .has not been brought into the record of .the present case ; but according to the allegations of this complaint the court in said former proceedings first appointed commissioners to partition the lands, but, after the commissioners made report in writing stating that the lands could not be so partitioned without great prejudice to the owners, the court then ordered a sale by a commissioner. The report of the commissioners appointed to make the partition is set forth in the complaint, and it is contended that the reasons given by them why partition in kind could not be made were insufficient to justify the court in ordering the sale of. the land. The report of the commissioners, as set forth in the complaint, is in part as follows:
“They find the most valuable tracts, arid those upon which there are any improvements, are in most instances in the possession of parties claiming title adversely to the Glasscock estate, and from appearances, and from our information, they have had possession an man)' instances for sufficient length of time under the statute of limitations to ripen their claims, or at least to endanger the title of the Glasscock estate.
“That, while they have not made a personal inspection of the land lying east of Paragould, they are informed and believe tli at the same conditions prevail as to this land, and that perhaps even a larger per cent, of improved lands are in possession of parties claiming adversely • to the Glasscock estate. That the unimproved lands are scattered over a wide territory, and to a great extent lying in small bodies, are swampy, low and wet, and in many instances are covered with water, and that sloughs and ponds are scattered promiscuously over all the lands lying in the bottom, from such land the valuable timber had been out and removed. As to some of the tracts of land, we were simply informed, and believe, that there are other claimants to the title, claiming adversely to the Glasscock estate.
“Wherefore your commissioners beg to report that partition of the lands above described can not be made without great prejudice to the owners, and great uncertainty as to the title to the lands which would be assigned to each heir. They state that they and Mr. Newsom were occupied four days each in the discharge of their duties herein.”
It is also alleged in the attack on the validity of the sale that the lands were sold en masse for a gross sum, and not in separate tracts or subdivisions; that the price was inadequate; and that some of the lands were not embraced in the advertisement of sale. The lands were bid off at the sale by defendant A. H. Glasscock, but he assigned the certificate of purchase to the Sachs Realty Company, a corporation, to which the sale was confirmed and the deed executed, pursuant to the orders of court. Said corporation was made a party defendant to, this aotion as well as certain other parties claiming an interest in the land
Counsel for plaintiff present the case here as a bill to review the former decree of the chancery court for errors alleged to be apparent upon the record thereof.
The court had jurisdiction to order a sale of the lands for partition, and it was proper to do so when it appeared from the report of the commissioners, or from other evidence heard by court, that the lands were not susceptible of division among the owners without great prejudice to their interests. Moore v. Willey, 77 Ark. 317. Even if it be conceded that the reasons stated by the commissioners were insufficient to justify a sale of the lands, that would not avoid the sale, the court having jurisdiction to order ¿it. It would be only an error in the proceeding, to be taken advantage of in a direct attack. Delatour v. Woodall, 43 Ark. 521; In re Simmons, 55 Ark. 485. Besides, there is -nothing to show, according to the allegations of the complaint, that the court based the decision ordering a sale entirely on the report of the commissioners. For aught that appears in this record, the court may have heard other evidence. I.t is the duty of. one seeking to vacate a decree to bring it before the court so that it can be seen whether or not the decree was valid. Killion v. Killion, ante p. 15.
There is, therefore, nothing in the allegations of the complaint to show that there was error of the court apparent upon the record of the former decree. The alleged defects in the sale as to the advertisement and the sale en masse were mere irregularities which did not avoid the sale and were cured by the confirmation. Bell v. Green. 38 Ark. 78; Apel v. Kelsey, 47 Ark. 413.
Are plaintiffs entitled to any relief under the statute (Kirby’s Digest, § § 4431 and 6248), giving an infant the right, within twelve months after coming of age, to show cause against a judgment or decree ? All of the plaintiffs were minors when the former decree was rendered. Some of them were plaintiffs in that action, and, being moving parties in the proceedings, the statute affords them no relief, even if the case was one which fell within the terms of the statute. Woodall v. Moore, 55 Ark. 22.
A purchase of land by -a stranger at a sale under a decree which is erroneous but not void will be upheld, even though the decree be afterwards set aside. This is true whether the defendant be an adult or an infant when the judgment was rendered. Moore v. Woodall, 40 Ark. 42; Woodall v. Delatour, supra; In re Simmons, supra; Boyd v. Roane, 49 Ark. 397. It is otherwise, of course, where the decree is void. Rankin v. Schofield, 81 Ark. 440.
It follows that the complaint stated no cause of action, and the demurrer was properly sustained.
Affirmed.