31 Ind. App. 321 | Ind. Ct. App. | 1903
Appellant’s complaint avers: That
on March 20, 1893, Calvin O. Spencer, father of appellant and appellee, made his last will by which he devised to appellee the southeast quarter and the northeast quarter of the southwest quarter of section thirteen in a certain township and range, which will was afterwards duly probated; that concurrently with the execution of the will the testator addressed to appellee an instrument in writing giving
“And the court found that said agreement and settlement was a fair one, and made in the interest of both parties thereto, and that the said Ered Spencer at the time fully understood the same, and the terms thereof, and has received the full consideration agreed to be given him. And the eoiirt found that, pursuant to said agreement and settlement, each party had received all the consideration provided for him thereunder, and that the property so received said Ered Spencer has enjoyed, possessed, and used as his own, absolutely, and said Charles C. Spencer has used and possessed as his own, freed from the. trust, said real estate. And the court found that said agreement and settlement were valid, and that by and under the same there was a full settlement and adjustment of all differences, accounts, liabilities, and all other matters of every nature existing or claimed by either or both parties, and in all matters in which either haver an interest, including all claims growing out of the estate of Calvin C. Spencer, or in any manner affecting the same, or the trust created by said Calvin C. Spencer in favor of said
It is further averred that, ever since the above decree was entered, appellee maintains that the trust created by the will and the declaration of trust has been closed and terminated by reason of the decree, and not otherwise, and that appellant is not entitled to- any of the rents and profits, and has no right to live on the land, and that appellee was discharged as such trustee. The complaint, after giving the pleader’s construction of the will, avers that the design of the trust has not been accomplished; that appellee’s acts were in contravention of the trust; that the deed of appellant to him, and the suit instituted in which the decree was rendered, was an attempt to defeat the object of the trust— and asks that so much of the decree ,as declares that the trust was terminated be annulled and vacated, that the trust be declared in force, and that appellant’s interest in the trust property be held in trust for him by appellee, or that a receiver be appointed for that purpose.
The error assigned rests upon the court’s ruling sustaining a- demurrer to the complaint.
The statute makes the following, provisions: “Ho person beneficially interested in a trust for the receipt of the rents and profits of lands can dispose of such interest- unless the right to make disposition thereof be conferred by the instrument creating such trust; but the interest of every person for whose benefit a trust for the payment of a sum in gross is created is assignable.” §3394 Burns 1901. “Every sale, conveyance, or other act of a trustee, in con-' travention of a trust, shall be void.” §3395 Burns 1901. “Every power, beneficial or in trust, shall be irrevocable, unless an authority to revoke it is reserved in the instrument creating the same.” §3407 Burns 1901. Section 3411 Burns 1901 provides that real estate subject to a trust may he ordered sold by the court upon the complaint of “the trustee or cestui que trust of any trust,” setting forth either
The argument of appellant’s counsel goes to the proposition that the will and declaration of trust created a trust estate, which could not be terminated by an agreement between the trustee and the beneficiary, and that the former judgment terminating the trust was without jurisdiction,- and therefore void, and, being void, may be at any time vacated or set aside.
It is first argued by counsel for appellee that the court rendering the former judgment was a court of general superior jurisdiction and that, as it had jurisdiction of the subject-matter of that suit and of the parties, its judgment, even if erroneous, can not be successfully assailed in a collateral proceeding.
We think it clear that the present action is a collateral attack upon the former judgment. Any judicial proceeding, the object of which is to avoid, defeat, evade, or deny the force and effect of a judgment or decree, is either a direct or a collateral attack upon the judgment or decree. Various provisions are made by statute for avoiding or correcting judgments, and, when one of these statutory methods is pursued, the attack upon the judgment is direct; but if the same result is sought to be reached in some manner not provided by law, the attack is collateral. “Any proceeding,” says the author in VanEleet’s Collateral Attack, §5, “provided by the law for the purpose of avoiding or correcting a
- Jurisdiction is the power to hear and determine a cause. And it must be conceded that the circuit court rendering the former judgment had jurisdiction over the subject-matter of trust estates. The subject of the controversy in that action was the effect of the will and declaration of trust, and the validity of the agreement of the parties in relation to the trust. The court in that case had necessarily to determine whether the relation created between the parties was of such a character, the termination of which was inhibited by the statute. It had necessarily to determine the effect of all the provisions of the will and declaration of trust — among others, that the trustee, should receive the rents and profits from the land, and convert the same into money, and after paying all necessary expenses he should pay the balance of the money to the cestui que trust; that in case the trustee survived, the property was to be his absolutely; and that he should have power of control and disposition of the property. It had necessarily to determine the character of the relation created by the will and declaration of trust, and in doing so must necessarily place a con
As it does not appear on the face of the prior judgment that it is void, it is not subject to a collateral attack. Lantz v. Maffett, 102 Ind. 23 v. State, ex rel., v. Morris, 103 Ind. 161; Young v. Sellers, 106 Ind. 101; Hall v. Durham, 109 Ind. 344; Lewis v. Rowland, 131 Ind. 103. The most that could he said is that the prior judgment was erroneous, and, however erroneous it might be, it is not subject to a col- . lateral attack. The pleadings in the former action were set out in the complaint in this action, and show that the whole subject-matter was covered in the complaint of the present appellee, the cross-complaint of appellant, and the answer thereto by appellee, and the decree covers the matters there put in issue. The present action seeks to avoid and annul the precise question adjudicated by that decree. The whole force and effect of the decree is assailed. As the court had jurisdiction both of the subject-matter and of the parties, the decree rendered can not he thus assailed collaterally. From the earliest judicial history of the State, it has been held that, where a court has jurisdiction, a final determination of the matter by the court forever puts it at rest. See Fischli v. Fischli, 1 Blackf. 360, 12 Am. Dec.
Judgment affirmed.