53 Ark. 37 | Ark. | 1890
This is an action of ejectment brought by the appellants. They deraign their title to the land in controversy from the government. The appellees assert that the appellants’ title was divested by sale under a decree of the Sebastian circuit court, and has come to them through conveyances from the purchasers at the judicial sale. The validity of the decree under which the sale was had is the sole question for our determination. The decree purports to have been entered by the Sebastian circuit court on the 5th day of November, 1870, upon the petition of the plaintiffs' mother who claimed to be acting in the capacity of their statutory guardian — they being infants at the time. The object of the petition, which was attained by the decree entered in pursuance of its prayer, was to sell the land in dispute for the support of the infants. The sale took place in January, 1871, and was soon after regularly confirmed. The decree is assailed upon the grounds, (1) that the court rendering it was not held at the time or place prescribed by law; (2) that the petitioner for the sale was not the statutory guardian of the minors and had no authority to appear for them, because appointed by a probate court held at a time and place not prescribed by law; and (3) that in any event, the probate court had exclusive jurisdiction of the estates of the minors, and that the circuit court was without power to order the sale. The argument is, that for each of these reasons the decree of the circuit court is coram non judice and void, and that the title of the appellants is, therefore, unimpeached.
The confusion about the time and place fixed by law for the courts to convene comes from that prolific source of evil, the division of a single county into two judicial districts, which was begun in the session of the legislature of 1860-1, when the division of Sebastian county was made. The statute provided for holding probate and circuit courts at Fort Smith as well as at Greenwood, the county seat, and fixed the times for them to convene at each place. For a time the local authorities acted under the belief that the county seat had been removed by an order of the county court, in pursuance of a vote of the people, from Greenwood to Fort Smith, and that Fort Smith was the only legal place for holding courts in the county. During that time the holding of courts at Greenwood was abandoned. See Patterson v Temple, 27 Ark., 202, and Jones, ex parte, 27 Ark., 349.
Jurisdiction over the estates of minors was exercised by courts of equity from the time of their establishment. Their ' power to control the realty and sell the personalty of the minor for his benefit was never doubted; but the power to divest the infant of the title to his realty was at least not generally exercised by the English courts, and its existence has been denied by some American tribunals. See Faulkner v. Davis, 18 Gratt., 663.
The Supreme Court of Illinois find the reason of the English rule in the aversion of the English law to the free disposition of real estate, and as the policy of this country was the reverse of that, the English rule, they conclude, found no place in our jurisprudence. Dodge v. Cole, 97 Ill., supra. Another and more obvious reason is that assigned by Chancellor Cooper, to wit: — that the rule is based not upon a question of policy, nor upon the lack of the court’s jurisdiction to act upon the realty, but rather in the minor’s want of power to convey — the court being unable to supply him with the power or to authorize another to do for him what he could not do himself. Gray v. Barnard, 1 Tenn. Chy., 298; Williams v. Williams, 1 Tenn. Chy., 306; Kearney v. Vaughan, 50 Mo., 284. This reason is substantiated by the practice of the courts of chancery when the title to lands was in a trustee for the minor’s benefit. The court then found no difficulty in divesting the title by acting upon the trustee who was sui juris and could be compelled to convey. Gray v. Barnard, supra; Anderson v. Mather, 44 N. Y., 260.
In this State the difficulty of divesting the title has been removed by statute — a vestige of the ancient practice still remaining in allowing the infant one year after he has obtained his majority to show cause against a judgment in certain cases. Mansf. Dig., sec. 5184. Whatever the effect of this section may be, it can have no influence in this case, if for no other reason, because no attempt to show cause against the decree was made within the year of grace allowed. See Schouler Dom. Rel., sec. 357.
Courts of probate had jurisdiction of the management of the estates of minors from the outset in this State, but not until the passage of the act of December 23, 1846 (Gould’s Dig., p. 134), did they have power under any circumstances to order the sale of the ward’s lands; but, says Judge Eakin in the case of Reid v. Hart, 45 Ark., 41, chancery had such jurisdiction all the while. And this may be said to be in accordance with the weight of American authority. Dodge v. Cole,97 Ill., supra; Gray v. Barnard, 1 Tenn. Chy., supra; Kearney v. Vaughan, 50 Mo., supra; Goodman v. Winter, 64 Ala., 410; Dorsey v. Gilbert, 11 Gill. and J., 89; Huger v. Huger, 3 Des., 18; Matter of Salisbury, 3 Johns. Chy., 347; 2 Kent, Com., 230; Story, Eq. Jur., sec. 1357.
Did the grant of jurisdiction to the probate court oust the jurisdiction of equity?
The power of the chancery court in such cases was recognized by the judges who delivered the opinions of this court in the cases of Myrick v. Jacks, 33 Ark., 425, and State v. Grigsby, 38 Ark., 406. The general rule is that the inherent jurisdiction of equity is not destroyed by the grant of jurisdiction in similar cases to another tribunal, unless the intention of the law makers appears to be otherwise. Menifee v. Menifee, 8 Ark., 9; King v. Payan, 18 Ark., 583; Myrick v. Jacks, supra; State v. Grigsby, supra. The rule is illustrated in the grant of a limited jurisdiction in the assignment of dower to the probate courts, which the court in Menifee v. Menifee declined to consider as exclusive to any extent of the jurisdiction of equity. Hilliard v. Hilliard, 50 Ark., 34. But, as the statute stood at the time of the decree in this cause, no authority to sell the ward’s lands for his maintainance was expressly granted to the probate court. (Gould’s Dig., p. 134.) As that court had power to sell, its'judgments ordering a sale for the maintenance of a minor would doubtless be regarded as valid' on collateral attack; but, as there was no express grant to the probate court of an adequate remedy in such cases, it cannot be said that the chancellor was shorn of the power which he has always exercised.
As the decree, which is the basis of the appellees’ title, is not void, the judgment must be affirmed.