79 Ark. 194 | Ark. | 1906
Lead Opinion
(after stating the facts.) This action was brought under sections 6248 and 4431, subdivision 8, of Kirby’s Digest. This court has construed these provisions in Blanton v. Rose, 70 Ark. 418. According to that case, appellants except Mamie Adkins, the children of B. F. Jones, had the right to bring this suit. The decree which they seek to vacate divested their title in the lands, and was tantamount to ordering a conveyance from them in favor of appellee. They, except Mamie Adkins, were minors when the decree was rendered, and under the above section had a day in-court within twelve months “after arriving at full age” to show cause against the decree, and to vacate same for errors therein. Section 4431, subdiv. 8, supra.
As to Mamie Adkins, she was over eighteen years of age when the decree sought to be vacated was rendered. The statutes (secs. 4431, subdiv. 8, and 6248,-Kirby’s Digest, supra) preserve the right to appear and show cause why the judgment should be vacated to infants. Sec. 3756, Kirby’s Digest, provides: “Males of the age of 21 years and females of the age of 18 years shall be considered of full age for all purposes, and until those ages are attained they shall be considered minors.” Under this section, Mamie Adkins could have brought suit in her own name or defended a suit brought against her at the time the decree sought to be canceled was rendered. Under the law she was not an infant. The language of the statute is so plain that there is no room for construction. It follows that Mamie Adkins was not entitled to any relief under the complaint, and the decree, so far as her interest is concerned, must be affirmed.
The other appellants should have been granted the relief prayed. For they show that their ancestor took actual possession of at least three and three-fourths acres of the land descfibed in his tax deed. Indeed, the proof tends to show that he took possession of three hundred acres, for he deadened that amount. Under the decisions of this court in Carpenter v. Smith, 76 Ark. 447; Sparks v. Farris, 71 Ark. 117, and Crill v. Hudson, 71 Ark. 390, when appellant’s ancestors took possession of part of the land described in his tax deed, that possession extended to the limit of his grant. There was no one in the. actual occupancy of the residue of the land not occupied by B. F. Jones, thus distinguishing the case in that particular from Woolfolk v. Buckner, 67 Ark. 411.
The decree of the Mississippi Chancery Court dismissing appellants’ complaint is reversed, and the cause is remanded with directions to enter a decree quieting the title of appellants to the land in controversy, except as to Mamie Adkins, and affirming the judgment dismissing the complaint for want of equity as to her.
The court, however, before entering decree quieting the title of appellants to the lands in controversy as indicated, should make an order requiring appellants to make good to appellee the tender with interest.
Rehearing
ON REHEARING.
Appellee seeks to have the judgment changed except as to Mrs. Adkins, and appellants seek to have it changed so as to permit her recovery. The .court has carefully gone into the case again, and adheres to the decision rendered. It is pointed out that an undenied allegation of the complaint is that Mamie Adkins, nee Jones, was a married woman at the time of the rendition of the original decree. It was sought to bring her within the 5th paragraph of section 4431, Kirby’s Digest, instead of the 8th paragraph, under which this recovery was sustained for all the Jones heirs who were minors at the time of the rendition of the decree sought to be vacated.
To obtain.,relief under paragraph 5, two elements must concur: (1) The disabled condition of the moving party must not appear in the record; and (2) the error which should cause the judgment to be vacated must not appear in the proceedings.
It was not intended to give married women, minors and lunatics a remedy cumulative to their existing remedies by appeal, writ of error, certiorari or other appropriate method of review, which would correct the.error where it was apparent in the proceedings. When the error and condition do not appear in the proceedings, and therefore these .remedies are unavailing, then this statute reaches erroneous proceedings not otherwise correctible in favor of the persons laboring under disabilities therein mentioned. Richardson v. Matthews, 58 Ark. 484, is an application of this statute. A judgment on a promissory note was rendered against a married woman. She had not appeared, and on its face the judgment was valid; but as a matter of fact she was surety for her husband and son on the note, and was a feme covert. The proof of her condition and those other facts rendered it an erroneous proceeding, but one not co.rrectible without this statute, and it was held to apply. In this case the coverture of Mrs. Adkins did not affect the questions involved; and she appeared and put into the proceedings the facts of the case, and these facts disclosed the error of the court in the decree rendered. The court and her counsel put' a construction on the decision in Woolfork v. Buckner, 60 Ark. 165, which rendered it fatal to appellant’s cause, and therefore an appeal was abandoned; but that was an erroneous construction, as was shown when Sparks v. Farris, 71 Ark. 117, was decided. Recently this court on appeal corrected a similar misconception of it in Rucker v. Dixon, 78 Ark. 99.
Therefore the error did appear in the proceeding in the original case, and could have been corrected on appeal, and this statute is not applicable, and the rights of appellants must stand or fall on the 8th paragraph of section 4431; and for the reason pointed out Mrs. Adkins is precluded from recovery under it.
Justices Battre and Riddick differ with the majority of the court on the point that Mrs. Adkins is barred. They contend that she had one year after reaching 21 years to vacate the decree.
The motion is overruled.
