62 Ark. 439 | Ark. | 1896
(after stating the facts). The decree was correct. The Pulaski chancery court had no power to confirm and quiet the title in J. J. Bourke to the lands in suit between himself and the unknown heirs of Valentine Melvin, for the all-sufficient reason that Bourke shows affirmatively in his bill, not only that he had no title to quiet, but that the title was in the parties sued. Sec. 2476, Sand. & H. Dig., provides: “If there be no children, or their descendants, father, mother, nor their descendants, or- any paternal or maternal kindred capable of inheriting, the whole shall go to the wife or husband of the intestate.” Under this section, Rebecca A. Melvin, as the widow of Melvin, could only have become the owner in fee, provided there had been no heirs of Melvin in existence, known or unknown. Bourke, as her grantee, only acquired, such title as she had. So, as strange and paradoxical as it may seem, we have here the anomalous spectacle of one asking that a title be confirmed and quieted in him, which he shows to be in another. “Plaintiff says he believes there are unknown heirs of Valentine Melvin, non-residents of this state,” is the language of the bill, and he prays for and obtains a warning order against them. And then, without alleging a single fact that would work a divestiture of their title, he asks that it be confirmed and quieted in him. It should require no argument or citation of authority to show that a decree in favor of the complainant, based on such a complaint, is a sort of juridical monstrosity. The learned chancellor who rendered it in the first instance did so doubtless through inadvertence. He was evidently misled; and it was but to be expected that he should promptly annul what had been done, as he did, when he discovered the real status of the case upon which he had passed.
The decree was void, and will be so treated, whether attacked by direct or in a collateral proceeding. Where a bill shows no cause of action against the defendant with reference to the subject matter of the suit, tenders no issue with them, but, on the contrary, shows that there never could be any issue with them, the complaint not even being susceptible of amendment to show an issue, a decree based upon such a bill is a nullity, no matter how attacked. Windsor v. McVeigh, 93 U. S. 274; Munday v. Vail, 34 N. J. L. 418; Newman, Pl. & Pr., 688; Stewart v. Anderson, 70 Tex. 588; McMinn v. Whelan, 27 Cal. 300; Spoors v. Coen, 44 Ohio State, 503; Seamster v. Blackstock, 83 Va. 232; Works, Jurisdiction, p. 42; 1 Black, Judg., sec. 242.
Counsel for appellant have concluded that “if the complaint had nothing in it whatever from which it might be gathered that it was a proceeding to quiet title, the decree might be said to be invalid, for the reason that there would be pending no cause upon which the court acted.” Such is the case here. Merely a prayer to quiet title is-not enough. This is not like the case of Williams v. Renwick, 52 Ark. 160. It is not merely a failure to state a cause of action, but an affirmative showing of no cause of action.
The court has jurisdiction of .the subject-matter of quieting titles, but here there is no colorable presentation of the facts necessary to bring this case within that class of cases. Railway Company v. State, 55 Ark. 200.
As authority for bringing this action, counsel for appellants invoke section 5681, Sand. & H. Dig., which is as follows : “Where, in an action against the heirs of a deceased person as unknown heirs, or against other persons made defendants as unknown owners of any property to be divided or disposed of in the action, it appears by the complaint that the names of such heirs, or any of them, of such other persons are unknown to the plaintiff, a warning order, as directed in the last section, shall be made by the clerk against such unknown heirs or owners.” This section has no application to the case at hand; for, if there- be heirs, the court as above shown would have no power to grant the relief sought, the title in such case necesssarily being in them. Whereas, if there be no heirs, no service could be had, for there would be no one to serve, and the court would be without jurisdiction. Besides, if there were no heirs, there would be no cloud upon the title to remove, and no suit could be brought or would be necessary for that purpose. No authority can be found for bringing such a suit as was brought in the case of Bourke v. The Unknown Heirs of Valentine Melvin.
Other questions are presented, but it is unnecessary to discuss them.
Affirmed.
