87 S.W.2d 6 | Ark. | 1935
This is an action in ejectment by appellants against appellees in the Pulaski Circuit Court to recover certain real estate situated in Pulaski County, Arkansas. Both parties deraign title from a common source. This cause was heard by the trial court upon demurrer by defendants to plaintiffs' complaint and amendments thereto, and the various exhibits attached and made part thereof. Defendants' demurrer was sustained, and, plaintiffs refusing to plead further, judgment was rendered for defendants from which is this appeal.
The history of the devolution of said title is substantially as follows:
James B. Keatts, who was the owner of the land involved, on September 1, 1837, mortgaged the same to the Real Estate Bank of Arkansas to secure his bond to said bank for the sum of $20,500, given for 205 shares of stock in said bank. This bond was made due and payable October 26, 1861. In January, 1861, the Legislature passed act No. 112, approved January 16, 1861, to take effect October 26, 1861. This act gave authority to the State of Arkansas to institute suit in the Pulaski County Chancery Court to foreclose mortgages given to the Real Estate Bank then held by the State of Arkansas. Said act provided the procedure to be followed in the prosecution of said suits. On November 25, 1867, the State brought suit in the Pulaski County Chancery Court under said act to foreclose the Keatts mortgage. *511 The act expressly provided that the suit should be against the specific lands covered by the mortgage, and that no person should be made defendant, and that constructive service should be obtained by publication of notice to all persons to appear and make known to the court any claim or interest they might have in or to said lands. James B. Keatts appeared before said court and demurred to the bill filed by the State, which demurrer was overruled by the court. Thereafter neither Keatts nor any other person made any claim to said land during the pendency of said suit.
The mortgagor, James B. Keatts, died July 7, 1873, testate, and by the terms of his will the land involved was devised to his niece, Helen Hobbs, for life with remainder over to her surviving children. It is under said will that plaintiffs claim title as the surviving children of Helen Hobbs, who deceased October 10, 1934. On April 25, 1879, a final decree was rendered in the State's foreclosure suit wherein it was decreed that there was due on said bond the sum of $18,065.14, plus 6 per cent. interest thereon from October 1, 1870, and said land was condemned and ordered sold in satisfaction of said indebtedness. Sale was fixed by the court to be had September 15, 1879. Sale was had on said date, the State bidding $26,444 therefor. Sale was approved September 17, 1879. On August 7, 1880, the State, by its deed of that date, conveyed this land to George H. Meade for the sum of $11,856. Appellees claim title by subsequent conveyances of George Meade's grantees.
On September 20, 1874, Helen Hobbs executed her deed of trust to George Dodge, as trustee, for George H. Meade, including this land and other lands, to secure to George H. Meade a debt of $3,763.35, and on September 12, 1878, George Dodge, as such trustee, sold to George H. Meade, under the terms of the deed of trust, all the lands therein included. Afterwards, in all action of ejectment brought by George H. Meade against Helen Hobbs, the court in said action cancelled said trustee's deed and held it void and of no effect. Afterwards, under a compromise agreement between George H. Meade and Helen Hobbs, she executed to him, on December 12, *512 1882, her deed to the land involved and delivered possession thereof to him, which he and his successors in title have held ever since. George H. Meade died testate, and his will was probated August 31, 1890. By the terms of said will, the land involved was devised to his sister, Kate A. Meade, Mrs. Harriett S. Newton and Mrs. H. W. Meade, his mother. By a chain of conveyances from these devisees and their subsequent grantees, all the title George H. Meade had in and to said land passed to appellees.
It is contended on the part of appellants that, under the terms of the James B. Keatts will, Helen Hobbs became the life tenant of said land, and her children became the contingent remaindermen, and that appellants, as such remaindermen, had no right of entry until the termination of the life tenancy of Helen Hobbs. That the life tenant and those holding under her as such should be treated and held accountable as involuntary constructive trustees, and, while so holding, could not purchase the outstanding title to said land and thereby deprive the remaindermen of all rights and title to the land; that such an acquisition of the title by the holder of the life tenancy would be a violation of such trust relation, and that such acquisition by the holder of the life tenancy should be treated as a redemption for the benefit of the remaindermen. This contention is predicated upon the assumption that Helen Hobbs acquired a life estate in the mortgaged land under the terms of the James B. Keatts will, and that her life estate continued until her death, and that she conveyed her life estate to George H. Meade and that George H. Meade, while holding as such life tenant, purchased said land from the State of Arkansas, and that he and those claiming under him, including appellees, have held said lands continuously as such life tenants until the death of Helen Hobbs, October 10, 1934, at which time all rights of appellees as such holders of the life estate of Helen Hobbs ceased.
It is further contended by appellants that the foreclosure decree in favor of the State is void because the *513 Pulaski County Chancery Court was without jurisdiction; this upon the ground, first, that the act of January 16, 1861, was unconstitutional in that the Legislature had no power to enact said statute; second, that James B. Keatts, the mortgagor, died prior to the rendition of said decree, and that said cause was not revived in the name of the legatees, and for that reason the court had no jurisdiction to render said decree or approve said sale. The attack made upon said foreclosure decree and the proceedings had therein is a collateral attack.
It has been the long and well-settled rule in this State that where the record shows that a court of superior jurisdiction has jurisdiction of the subject-matter and of the person, such judgment or decree cannot be attacked collaterally, but only by some direct proceeding in the court rendering the judgment or decree, or under the provision of 6290 of Crawford Moses' Digest. In the case of Lambie v. W. T. Rawleigh Company,
In the State's foreclosure suit against the mortgaged land, the only subject-matter there involved was the specific mortgaged land and the application of the land to the payment of the debt secured thereby, all action strictly in rem. The Pulaski County Chancery Court was, by the act of January 16, 1861, vested with jurisdiction of suits for that purpose. The mortgaged land was made the subject-matter involved. No person could be made defendant. Constructive service by publication was the only service required or contemplated by the *514 act. The record here shows the provisions of the act were followed in said proceedings giving the chancery court jurisdiction over the mortgaged land. And, having acquired jurisdiction of the subject-matter, its decree therefore would not be subject to collateral attack.
It is equally well settled that judgments and decrees entered upon constructive service by publication will be given the same favorable presumption as judgments and decrees upon personal service. Crittenden Lbr. Co. v. McDougal,
As a further reason why the foreclosure proceedings and decree in the case of the State against the mortgaged land rendered in the Pulaski County Chancery Court, April 25, 1879, should not be disturbed is: That in 1872, the case of McCreary v. State,
Furthermore, it is the long established rule or doctrine of this court that cases like the McCreary and Duke cases, supra, where the construction of the Constitution or statutes involve rights and titles to property, such decisions become and have the force of rules of property; and where persons have acquired property upon the faith and credit of such decisions and especially after the lapse of many years, such decisions and the rights acquired thereunder should not be disturbed. Newton Heirs v. State Bank,
As we have determined that the State's foreclosure decree is not subject to collateral attack, and that said decree is valid and binding, what then is there upon which to predicate any trust relation between appellants and appellees? It is fundamental that heirs and devisees take only such rights as the intestate or testator had in the property at the time of his decease. The debts of the deceased must be paid before the distributees, be they heirs or legatees, receive anything. The rights of heirs or distributees can never be greater or rise above the rights of the intestate or testator. In the case of Planters' Mutual Insurance Association v. Harris,
It is further contended by appellants that the sale to the State is void for the reason said foreclosure suit was not revived in the names of the legatees under the will, and that they have never had a day in court. We cannot agree with appellants in this contention. The suit by the State was an action in rem to condemn and subject the specific mortgaged land to the payment of the mortgage debt. The act specifically prohibited any *518 person being made a party defendant, not even the mortgagor. The style of the suit should be the State against the particular land, nor should there be any change in the style, nor any abatement or suspension of the suit or change in the proceedings on account of the death, marriages, infancies, arrivals of age, or other incidents affecting persons interested in the lands or claiming them, but the suit should go on to consideration, hearing and decree, without the delays and revivors that grow out of the change of parties to suits in chancery under the common practice.
Under the provisions of this act the mortgagor was not a necessary party to the suit. The act prohibited any person being made defendant. It was a suit against the land. There being no person a defendant, there could not well be revivors to succeed a person not a defendant. The act itself prohibited a revivor as in ordinary cases. This question is concluded by the decisions in the McCreary and Duke cases cited supra, where we held the procedure authorized by the act was constitutional and within the power of the Legislature to enact.
The record in this case discloses a further reason why the foreclosure decree by the State in 1879 should be held binding and conclusive against appellants; and that reason is based upon the doctrine of lis pendens. The record here shows that the devise to appellants was made during the pendency of the foreclosure suit against the lands devised. The general rule is that whoever acquires the subject-matter of the suit pendente lite takes subject to the decree or judgment which may be rendered in such suit. This rule has been enunciated and recognized in a multitude of cases from nearly every jurisdiction, both Federal and State, 17 R.C.L., 1009. It is further laid down as fundamental that a judgment in rem binds all the world irrespective of whether the persons bound are or not parties to the litigation. The theory upon which a judgment in rem is regarded as a judgment binding upon all the world is that all the world has constructive notice of the seizure, with the cause and purpose of the taking by the court of the control of the *519
res, and has notice thereby of the time and place at which any person may appear before a competent tribunal and have a trial, before condemnation of his property, 15 R.C.L., 84, p. 641. In the strictest sense of the term, a proceeding in rem is one which is taken directly against property or which is brought to enforce a jus in rem. The distinguishing characteristic of judgments in rem is that they operate directly on the property and are binding upon all persons, or, as sometimes said, upon the whole world, 15 R.C.L., 72, p. 629. It follows from the general rule that a person who acquires the property pendente lite takes subject to the court's adjudication of the rights in the property which is the subject-matter of litigation; such persons will be bound whether a party to the litigation or not. Parties, their privies, and purchasers pendente lite are all grouped together as bound by the court's decision, 17 R.C.L., 28, p. 1031. Also to same effect, 2 Pomeroy's Equity Jurisprudence, 3d ed., pp. 632-635. The rule as above stated has been recognized and followed by this court from its early days to the present time, as the following citations well show: Whiting v. Beebe,
The State's foreclosure foreclosure suit was strictly an action in rem against the specific mortgaged land, the subject-matter involved in said suit. James B. Keatts by his will dated July 23, 1872, while the State's foreclosure suit was pending, bequeathed the mortgaged lands to Helen Hobbs for life with the remainder over to appellants. This *520 bequest was taken, and could only be taken, under the law, subject to the State's lis pendens lien. Therefore if, upon the final decree and sale thereunder, all of said mortgaged land was sold in satisfaction of the mortgage, then there was nothing left of said bequest for the devisees to take, their entire right and title to said land was extinguished, and the full title vested in the State by reason of said decree and sale; and the title attempted to be transferred to the devisees by their testator's will was entirely extinguished and ceased to exist as a valid claim of title to said land. For the reasons herein stated, we are of the opinion that appellants are without right or title to the land herein involved; that the decision of the trial court was correct, and should be affirmed. It is so ordered.
BUTLER, J., disqualified, and not participating.