Lead Opinion
(аfter stating the facts.) This is an appeal I from a decree denying a petition for restitution of lands sold I under a former decree, which the chancellor held to be erroneous but not void. . It is well settled, when lands are sold under a valid decree and purchased by one not a party to the proceedings who pays the purchase price and receives a deed to the lands, that the purchaser will be protected in his purchase, even though the decree under which the lands were sold be reversed and set aside on appeal. The mere fact that there were errors in the proceedings leading up to the decree is a matter of no moment, so far as the purchase is concerned, if the court had jurisdiction of the parties and the subject-matter and power to mаke the decree. Nor would the case be different if the purchaser had notice of such errors, for otherwise it would not be safe for any one to purchase at a judicial sale that was liable to be reversed on apepal. Tor on .a reversal it could always be said that by an examination of the record the purchaser could have ascertained the errors. Learned counsel for appellant have discussed the doctrine of innocent purchaser at some length and with much spirit and force, but that doctrine has very little application to this case, for this is not the case of one who purchases from a fraudulent grantor with notice of the fraud, or of one who buys land from one having the record title with notice of an outstanding title. Notice in such a case renders the position of the purchaser no better than that of the grantor. But the purchase here was made at a judicial sale where errors do not affect the validity of the sale, and where notice thereof does not affect the purchaser. It is sufficient for the purchaser at such a sale to know that the court had jurisdiction and power to order the sale. If the court has power under a decree to order the sale, and a purchaser buys at a sale made under the decree, then, if the sale is confirmed by the court, and the purchaser pays the price and receives a deed, it is immaterial, so far as he is concerned, whether there were errors or not, for his title will not be affected by them. Moore v. Woodall,
It follows that the main question to be determined in this case is whеther or not the court had the power to make the sale at which McDonald purchased this land. The suit in equity in which the decree for the sale' of the land was made was .brought by certain relatives of J. N. S. Gibson, who claimed to be his only heirs at law, against Sallie Spott Gibson, now Mrs. Rankin, who, then an infant of tender years, was supposed to be the daughter of Gibson, and against Bettie Harwell, who had been the wife of Gibson, but had secured a divorce and married Harwell. The complaint alleged that Sallie Spott Gibson was not the child of Gibson, but the natural child of some man unknown to the plaintiffs, and that neither she nor her mother had any interest in the lands left by Gibson. Plaintiffs prayed that their rights be determined, that the lands be partitioned among them according to their rights, and for all other proper relief. The defendants filed an answer, denying the аllegation of the complaint, and asked that it be dismissed. Mrs. Harwell also asked that commissioners be appointed, and that her dower and homestead rights be assigned and set apart for her, and both defendants asked for all such other relief as they were entitled to.
In the first place, the fact that the administrator was in possession of the lands did not in our opinion affect the jurisdiction of the court to decree a partition of the lands of the estate among the heirs on payment of the debts of the estate by them. The administrator had been appointed over two years, the amount of the debts were known, and, upon the heirs paying or offering to pay the debts, the court had the right to partition the land among them, for the holding of the administrator was not adverse to the heirs, and the fact that no one was in possession of the lands holding.adversely to the heirs made it necessary for these claimants to go into a court of equity to have their respective rights and interest determined. Trapnall v. Hill,
When it is alleged and proved that the best interests of both parties will be subserved by a sale of the land, the court may order a sale without first appointing commissioners to pass upon the necessity of a, sale. The failure to appoint commissioners certainly does not affect the jurisdiction of the court or the validity of the sale. If that was an irregularity, it can not be urged against a judgment on collateral attack, which is the only matter of importance to be considered in this case. Bell v. Green,
The question as to whether a court of equity has power to order a sale of an infant’s lands for investment or for other causes, when it clearly appears that such a sale would be 'to his benefit, has been much discussed by the courts. Such power was not exеrcised by the English courts of equity, and many American courts follow the English rule that a court of equity has no power, by ordering the sale of an infant’s land, to convert it into personal property or to make any disposition of the inheritance that will bind the infant.
The English rule is said by some courts to be founded on the wide difference that existed “under the law of England between realty and personal property with respect to their enjoyment and devolution, passing as they did in different lines of succession, and being capable of disposition by will at different ages.” The opinion of quite a number of American courts that these considerations should have little weight in the United States, where the differences between realty and personalty in these respects have been almost wholly obliterated, has led them to reject thе English rule, and-to hold that in this country courts of equity have the power to sell or mortgage the lands of infants for their benefit. This jurisdiction is exercised cautiously, and never unless it is clearly made to appear that a sale will be to the decided advantage of the infant.
The cases bearing on this question have been reviewed and the law clearly stated on this point by Mr. Stewart in an extended note to the recent case of Richards v. Ry. Co., 6 Am. & Eng. Dec. in Eq. (1st series), 488. The question was considered by this court in Shumard v. Phillips,
But we regard it as unnecessary to determine that- question in this case, for it has always been the rule, both in this country and in England, that courts of equity have the power, where the decree is by consent, to order the sale of an infant’s real еstate in proceedings for the partition of lands, or when necessary to secure or protect the rights of other parties. Davis v. Turvey, 32 Beav. 554; Hubbard v. Hubbard, 2 Hem. & M. 38; Thorington v. Thorington,
A judgment of that kind may be entered by the consent of the parties, even though an infant be a party to the proceedings; and where the infant is properly represented, he will be as much bound by such a decree as an adult. Eor an infant is ordinarily bound by acts done in good faith by his solicitor or counsel in the course of a suit to the same extent as a person of full age is bound. As a matter of course, before pronouncing a decree by consent against an infant, -the court should make inquiry and ascertain that the decree will be for the benefit of the infant. But the failure to make inquiry does not affect the jurisdiction or power of the court to rendеr the decree, for it would never do to hold, when a court has jurisdiction of the parties and of the subject-matter, that the mere failure of the judge to properly consider the matter before rendering his judgment invalidated his judgment and rendered it void. Such a rule would provide a new and effective means whereby judgments could be assaulted and overthrown on collateral attack, and finds little or no support in the adjudged cases. For this reason, while courts should, as before stated, always make inquiry before rendering decrees affecting the property of infants, yet, if the court having jurisdiction does without inquiry pronounce a judgment by consent in a case where an infant is a party, the infant is as much bound by the decree, until set aside by some direct proceeding authorized by law, as if there had been the fullest inquiry and an express determination that the decree was for his benefit. Thompson v. Maxwell Land Grant Co.,
But it is said that the decree is void in this case because the complaint did not allege that the sale of the land was necessary, and did not ask for a partition of the land against the defendant or for a sale of the land. The plaintiffs, it is true, alleged and contended that the defendant had no interest in the land. They alleged that the lands could be partitioned in kind between themselves, but they asked also for all other proper relief. The answer of Mrs. Harwell, one of the defendants, after alleging that the lands were owned by defendant, and that the plaintiffs had no interest therein, asked for an assignment of the homestead and dower; and, as before stated, both of the answers and cross-complaints concluded with a prayer for general relief. Now, we do not regard it as a jurisdictional defect that the complaint alleged that the defendant had no interest in the lands, and asked for no partition between them; for, under the prayer for general relief, when it was determined that the defendant had an interest in the lands, the court had the right to completely dispose of the controversy, and to order a partition of the lands between them. As an incident to that, it had the right to order a sale of the lands, if necessary to make the partition and to do complete justice between the parties. For, under the prayer for general relief, the parties may have special relief other than that prayed for by the bill. Fletcher’s Eq. Plead. & Prac. 734 & 735; 1 Black on Judg. § 197.
“The court,” says Mr. Bliss, “may grant any relief consistent with the case made and embracеd within the issue. If the facts put in issue and established by evidence entitled the party to any relief in the power of the court to give, although not that demanded, it is the duty of the court to give it, and its power to do so is not conditional upon the form of the prayer.”Bliss on Code Pleading, § 161.
It is clear, we think, that the pleadings in this case were sufficient to authorize the judgment by consent, for that judgment was within the scope of the case made by the pleadings. The judgment being by consent, the pleadings must be treated as amended so as to sustain the judgment. In other words, as the parties could by consent have amended their pleadings, sc as to ask for a sale of the land, and to show that it was necessary in order to rtiake partition without prejudice to some of the parties, we must treat this as in effect done when they consented tо a decree for partition and to a sale of- the land for that purpose. In this collateral attack upon the decree and the sale thereunder we must assume that the parties representing the infant defendant honestly believed that it was to her interest that a decree of that kind should be made, and that the evidence justified this belief. As the court had power to order a sale of the land for partition, such a decree was binding on all parties 'before the court, infants as well as adults, until reversed or set aside on appeal or in some way provided by law.
We see nothing in this case that justifies the assertion that the parties to the suit in which the decree was rendered committed any fraud upon the -court. It was in no sense a fictitious proceeding brought to impose upon the court аnd secure its judgment by fraudulent methods, but a bona Ude suit between parties claiming interests in land adverse and hostile to each other. The parties were each represented by learned counsel. After the evidence had been taken and was before the court the parties compromised and agreed to a decree settling their rights because it was deemed the best thing to do under the circumstances. There is not, in our opinion, the slightest ground to hold that there was anything fraudulent or dishonest in the matter, or that the judgment was void on that account. Nor do we think that the effect of the former decision of this court, when the consent decree was before the court on appeal, was to hold that such decree was void. On the contrary, the language of the court clearly indicates that the judgment of reversal was on the ground of error, and that the court did not intend to hold that the decree was void.
The testimony shows that when E. B. McDonald purchased the land at the sale under the decree he had an understanding with E. S. McDonald, one of the parties to the litigation, that he was to take a one-third interest therein. But E. S. McDonald afterwards declined to take the land, and L. B. McDonald kept the whole tract. We do not think that this agreement in any way affects the right of E. B. McDonald to be protected in his purchase. He was not a party to the suit, nor did he in any sense purchase from E. S. McDonald, but from the commissioner. He paid a fair price, and comes, ás we think, fully within the rule which protects such purchasers against the effect of subsequent reversals.
Again, if this sale was void, still the action of plaintiff for restitution of the lаnds against the heirs of E. B. McDonald, the purchaser at the sale, seems to be barred by the five years statute of limitations applicable to judicial sales. This statute provides that actions for the “recovery of land sold at judicial sales shall be brought within five years after the date of sale and not thereafter, saving to minors and persons of unsound mind the period of three years after such disability shall have been removed.” Kirby’s Digest, § 5060. This statute, after the. time for bringing the action has lapsed, protects the purchaser, even though the sale may have been void. Cowling v. Nelson,
In this case the sale was made in 1889, and confirmed in February, 1890. The statute commenced running in favor of the purchaser at that time, and the five years expired before plaintiff became of age in June, 1899. She had, under the statute, three years tо bring the suit from that date, but she did not file the petition for restitution against the heirs of E. B, McDonald until December, 1902, more than twelve years after the confirmation decree and more than three years after she arrived at age. For this reason a majority of us think that she is barred; but, as the case is decided by the other points noticed, we find it unnecessary to go into a full discussion of the question of limitations.
■The case has been ably argued, and a large number of authorities have been presented for our consideration. The value of the property involved and the nature of the questions presented are such as to impress us with the importance of this controversy to the parties, but after due consideration thereof we are convinced that the judgment of the chancellor was in acr cordanсe with the law, and it is therefore affirmed.
Rehearing
ON RRHRARING.
Opinion delivered July 2, 1906.
Gustave Jones, P. R. Andrews, H. F. Roleson, N. W. Norton and U. M. Rose, for appellant; Rose, Hemingway & Rose, of counsel.
1. The jurisdiction of each of our courts is derived from the Constitution alone. The Legislature can not change the jurisdiction of the court as prescribed by the Constitution. The jurisdiction of each court in its own peculiar sphere is original and exclusive.
2. A purchaser under execution or at a judicial sale must take noticе of all that appears on the face of the judgment or decree under which he buys. The decree or judgment is an indispensable link in his chain of title.
3. The former decisions of this court in this case are the law of the case, and can not now, after the lapse of the term in which they were rendered, be changed.
And it is also plain from the judgment formerly rendered that this court held that the decree appealed from was not valid — was in fact no decree, A judgment rendered now, inconsistent with that heretofore rendered, can be set aside on motion, because void for want of jurisdiction.
The decree in this case was rendered in 1889. There is no change in its legal effect from what it was on former appeal. Had its recitals been incorrect, plaintiffs would have moved to amend; yet that could not have been allowed, for they were barred of that right by limitation.
4. The “family settlement” decree was fraudulent. Whenever a judgment is obtained through a violation of duty by a guardian,.it is fraudulent in law, may be impeached in chancery, and collaterally. 1 Big. Fraud, 90; Broоm, Leg. Max. 341, 736;
5. There can be no decree without judicial action. 1 Big. Fraud, 93; 2 Daniell, Ch. Pl. & Pr. 986; Black. L. D. 841. In this case a judicial investigation was purposely avoided, out of considerations of mere expediency, as was declared by this court.
The purchaser at a guardian’s sale must make inquiry as to the title, and the guardian’s authority to sell.
6. The guardian had no power to compromise. The rights of infants can in no case be affected except upon issues and proof.
7. The decree is void because not based on the pleadings.
A judgment of a court outside the issues presented is a nullity..
In partition proceedings, to give the court jurisdiction .to order a sale, it is indispensable to allege that the lands in question can not be divided without loss or injury to the parties.
8. In the opinion handed down it is intimated that there is a doubt as to whether the rights of appellant are not barred by limitation. They are not barred. An infant may show cause against a decree within twelve months after arriving at the age of twenty-one years. Kirby’s Digest, § 6248.
When the Civil Code, of which this section is a part, was adopted, a female attained her majority at the age of twenty-one. Though by the act of 1873 she attains majority at the age of eighteen, the Legislature has made no change in the above section, and the court can not change it.
I. M. Moore and W. B. Smith, for appellees.
Examination of our statute, Kirby’s Digest, § 6248, and § 391, Ky. Code, cited by appellant, shows that ours is not. a copy of the Kentucky statute, but it is a literal copy of section 386, Civil Code, Ohio. See Swan’s Stat. Ohio, 671. The Supreme Court of that State has held that the title of a purchaser of real estate sold by an administrator to pay debts is not divested by a subsequent reversal of the order of sale. 3 O. St. 389. In a proceeding to set aside a sale of the lot of an infant by a guardian under an erroneous order of the probate court, held that error did not affect the jurisdiction of the court, nor render the sale void, nor affect the title of the purchaser. 26 O. St. 636; 42 Ohio, 259. It therefore appears that the court of that State did not construe the act of that State as affecting the rights of purchasers at judicial sales, and, unless given that effect, it would not in any way affect the operation of the statute of limitations. Since that statute was passed and the case first cited was decided long prior to the enactment of the statute of this State, this court should follow the Ohio- rulings.
The statute has no application to a sale in partition. A judgment in partition is as effective against an infant as against an adult, the only difference being that the infant has a more extended right to set the decree aside upon a showing of merit; but if he succeeds, he can not take the land from an innocent purchaser at the judicial sale.
The only object of the statute was to extend the time within which an infant might have his remedy. It does not purport to enlarge his rights in other respects, neither was it the intention of the Legislature to impair the sanctity of judicial sales. It follows that thе statute can have no application to the statute of limitations applicable to judicial sales. .
We find, as the chancery court did, that SallieSpott Rankin, born Gibson, was the legitimate child and sole heir of J. N. S. Gibson, deceased. The plaintiffs in this case, appellees, alleged in their complaint that they were the heirs of the deceased, and that Mrs. Rankin was not. During the pendency of this suit, and while Mrs. Rankin, then Sallie Spott Gibson, was under the age of eight years, the plaintiffs and defendants entered into a compromise, Sallie being represented by a guardian, by which it was agreed that the personal and real estate of Gibson should be divided equally between plaintiffs on one part and Sallie and her mother, .on the other part, giving to plaintiffs one half and to Sallie and her mother the other half. -The dеcree in question was made in conformity with this compromise.
The compromise on the part of the infant, Sallie, was made without the order or sanction of any court, and without authority. The chancery court neither approved nor disapproved of it, made no investigation to determine whether it should have been made by the guardian, and did nothing to give it life, force or effect. Void in the beginning, the court did nothing to make it valid. According to the opinion of this court, delivered in the case when it was here on appeal the first time, it was void. Rankin v. Schofield,
The decree of the court was without jurisdiction.
As said in Railway Company v. State,
The plaintiffs, appellees, alleged in their complaint that they were the only heirs of John N. S. Gibson, deceased, and that Sallie Spott Rankin was illegitimate, and was not an heir; that Gibson died seized and possessed of certain lands described in their complaint; and that they- (lands) are susceptible of equitable division by metes and bounds among the parties entitled thereto; and asked that commissioners be appointed and directed to lay off to each of plaintiffs his or her proper share in said lands by metes and bounds.
Sallie Spott Rankin, then Gibson, answered and denied that plaintiffs wеre the heirs of John N. S. Gibson, deceased,- and entitled to the lands described in the complaint; and alleged that she was the only heir of the deceased. The allegation in the complaint that the lands were susceptible of division in kind was not denied.
The issue was, who were the heirs of John N. S. Gibson, deceased, the plaintiffs or Sallie Spott Rankin?
The chancery court, without hearing evidence or finding a single fact, without determining who the heirs are and that the lands were not susceptible of division, divested Sallie Spott Gibson of three-fourths interest in the lands, and created a tenancy in common between the parties, and, in violation of the statute and without authority, ordered the land-s to be sold at public sale for division. The decree, in substance and effect, was without the issue. The compromise being void, it was without consеnt, and was not only erroneous, but void. About such a judgment or decree Mr. Freeman says: “A void judgment is, in legal effect, no judgment. By it no rights are divested. From it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars any one. All acts performed tinder it and all acts flowing out of it are void. The parties attempting to enforce it may be responsible as trespassers. The purchaser at a sale by virtue of its authority finds himself without title and without redress.” Townsly-Myrick Dry Goods Co. v. Fuller,
Mrs. Rankin, having appealed from said decree within the time prescribed by law, sought by an appropriate proceeding, within twelve months after she arrived at the age of twenty-one years, to show cause against it. Section 6248 of Kirby’s Digest provides: “It shall not be necessary to reserve in a judgment or order thе right of an infant to show cause against it after his attaining full age; but in any case in which, but for this section, such a reservation would have been proper, the infant, within twelve months after arriving at the age of twenty-one years, may show cause against such order or judgment.” In Blanton v. Rose,
Under the statute she may, within the time designated, show cause against the decree. She has done so in this case and shown that it is void for want of jurisdiction in the court that rendered it. From this must necessarily follow the results or consequences of such judgment, among which sales made under it are void, and purchasers at such sales acquired no title to her рroperty. As an incident to the right guarantied to her by the statute, she is entitled to recover her property; otherwise the proceeding authorized by the statute is an idle and meaningless ceremony. If this is not its effect, what is the time to show cause worth? This right was reserved by the statute at the time the decree was rendered, and parties purchasing at a sale under the decree took subject to the right and with notice thereof.
Section 6248 is a special or particular statute, providing a remedy in particular cases, and is not repealed or modified by any general affirmative statute, unless it contains negative words or is invincibly repugnant thereto. Chamberlain v. State,
Parties purchasing under the decree in question had notice that it was void, and that they acquired no title. It was a link in' their chain of title, and they were bound to take notice of it, and that it was void. Gaines v. Summers,
Reversed and remanded for decree and proceedings consistent with this opinion.
Rehearing
ON SECOND REHEARING.
Opinion delivered December 10, 1906.
Appellees, in support of their motion, cite and rely on the following Arkansas cases: Boyd v. Roane,
In Boyd v. Roane, supra, it appears that “in 1868 suit was instituted in the circuit court of Jefferson County, in chancery, to foreclose a mortgage upon lands of John Selden Roane, deceased. The widow and heirs at law, and the administrator of the estate of Roane, were made parties defendant to the bill. The heirs were all minors. Process issued for all the defendants in February of the same year; a guardian ad litem was appointed by the court for the infant defendants; in January, 1869, a decree foreclosing the mortgage was rendered; a sale was made by the court’s commissioner, and A. M. Boyd, the appellant’s ancestor and one Walt, becamе the purchasers. Walt sold his interest in the lands to his co-purchaser, Boyd. * * * The widow’s dower was afterwards assigned, and Boyd purchased her interest in the land. He entered into possession of the entire tract. * * * Afterwards he discovered that the description of the land in the comissioner’s deed, as well as in the decree of foreclosure, was inaccurate, except as to about 300 acres of the tract; and in September, 1871, he filed a bill in the Jefferson Circuit Court, in chancery, to correct the error and quiet his title. The administrator of the estate and the heirs of Roane, who were still infants, were made defendant; process to bring them into court was regularly served,.and a guardian ad litem was appointed for the infants, who appeared and answered.” The court, after hearing the evidence аdduced, corrected the description and quieted the plaintiff’s title to the land. In both these suits the court had jurisdiction.
“In 1884, while.the youngest heir was still a minor, but more than one year after the next youngest had attained the age of twenty-one years, the heirs joined in'a complaint in the Jefferson Circuit Court, in chancery, against A. M. Boyd, to set aside the two decrees above mentioned, to have an acount for the rents and to oust Boyd of the possession.” This court held that this suit, “as far as the infant heirs are concerned, was a statutory proceeding to show cause, while as to the adults it was a bill of review resorted to for the purpose of vacating the decrees to enable them to redeem.”
They sought to set aside the decree in the first suit, because they alleged that there ivas no service of рrocess on any of the parties who were complainants in the last suit, but who were defandants in the suit to foreclose; that there was no defense made for the infants in that suit; that no proof was adduced at the hearing; that the second decree, being in aid of one that was void, could not rectify it. They allege that the second decree was void, because the answer of the guardian ad litem was not a proper denial of the allegations of the bill in that case, and because the only proof adduced upon the hearing was by ex parte affidavits.
In the first suit the record was silent as to the service of process upon the infant defendants. The court held that the presumption is that process was served upon them, and that it could not be contradicted by evidence aliunde.
As to other grounds of the attack upon the decree in the first suit the court said: “The court proceeded erroneously in that suit in pronouncing judgment without a defense from the guardian appointed for the purpose of protecting the interests of the infants, and without proof of the allegations of the bill. * * * But the misconstruction or even the disobedience of the plain provisions of the law in the exercise of jurisdiction once rightly acquired does not make a nullity of the judgment of the circuit court.”
As to the second decree the court said: “The infant’s only claim for vacating the second decree is for alleged errors in procedure. We are by no means sure that there is any reversible error in the proceedings. But, admitting that there is, the statute provides that the complaint in a proceeding by an infant tо vacate a judgment shall “set forth the grounds to vacate or modify it, and the defense to the action, and enacts that “a judgment shall not be vacated on motion or complaint until it is adjudged that there is a valid defense to the action.”
In Trapnall v. State Bank,
Woodall v. Delatour,
In re Simmons, supra, it appears'ffhat two heirs brought suit against four heirs for partition of lauds descended to them from their father. The defendants were minors. The lands were not .susceptible of division, and were sold. Two of the defendants died during minority. The sole question in the case was, did their portion of the proceeds descend as personalty or realty? The decree or judgment in the case was not an attack for error or want of jurisdiction. In that case the court said: “The provisions of the statute regulating proceedings in partition are applicable to infants”; and that a "judgment in partition is as effective аgainst an infant as against an adult, the only difference which the statute makes in any case being that an infant has a more extended right to set the decree aside for error upon a showing of merits.” But in what cases does the statute authorize a partition? .Section 5770 of Kirby’s Digest provides: “Where lands, tenements or hereditaments shall be held in joint tenancy, tenancy in common, or in co-parenary, however derived or acquired, and whether in ■fee, for years or for life, any one or more of the persons interested may present to the circuit court a petition praying for a division and partition of such premises according to the respective rights of the parties interested therein, and for a sale thereof, if ir shall appear that partition can not be made without great prejudice to the owners.” In such cases courts are vested only with jurisdiction to partition lands. They have no jurisdiction to partition the lands of an infant between him and persons who have no interest therein, and such power can not be conferred upon them. The Constitution prohibits it.
A comparison of the opinions in the foregoing cases with the last opinion in this case will show no conflict or inconsistency, The court in the last opinion do not undertake to say that sales to a stranger under an erroneous judgment are invalid. There is -a difference between erroneous judgments and judgments or decrees which are void for want of jurisdiction. In the former case the erroneous judgment or decree is valid until it is set aside or reversed by a court of competent jurisdiction, and a sale to a stranger under it before that time is vаlid. Boyd v. Roane,
We have not undertaken to determine the rights of parties to a return of proceeds of sale of lands received by appellant, rents of lands and improvements thereon, or other incidents consequent on the recovery of the same. They weret undetermined by the chancery court, and we are without sufficient information to do so. Nunn v. Robertson;
The, motion for reconsideration is overruled. The decree of the chancery court is set aside, and the cause -is remanded with directions to the court to enter a decree herein in accordance with the opinion of this court and for other proceedings.