Oliver v. Routh

Hart, J., (after stating the facts). (1) It is claimed •by counsel for appellant that the decree of foreclosure in the case of the Madison ‘County Bank against the widow and minor child of Geo. B. Oliver, deceased, was void because the writ of summons was without the official seal of the clerk; but this court has decided adversely to him in regard to this contention. In the case of Rudd v. Thompson and Barnes, 22 Ark. 363, the court held that a writ of summons is not void for want of the official seal of the clerk and that it may be amended on application to the court. The court further held that if no application to amend has been made, the defect is ground of reversal of a judgment rendered by default but that the writ can not be treated as void. (2) Again it is contended that the judgment of the Madison chancery court foreclosing the vendor’s lien on the property in controversy should be set aside because certain installments of the purchase money for which the decree of foreclosure was had were not then due and for the further reason that certain credits were not allowed which should have been allowed in that case. It must be remembered however, that this is a collateral attack on the decree. In the case of Whitford v. Whitford, 100. Ark. 63, the court held: “In determining the validity of a judgment upon collateral attack, a distinction must be observed between those facts which involve the jurisdiction of the court over the parties and subject-matter, and those quasi-jurisdictional facts, without allegation of which the court can not properly proceed and without proof of which a decree should not be made; absence of the former renders the judgment void upon collateral attack, but not so as to the latter.” To the same effect see Citizens Bank v. Commercial National Bank, 107 Ark. 142; McDonald v. Ft. Smith & Western Rd. Co., 105 Ark. 5; Crittenden Lumber Co. v. McDougal, 101 Ark. 390. So the decree in the chancery case referred to might have been erroneous but this would depend upon the facts before the court. If it was erroneous it could have been set aside on appeal; but the' validity of it can not be attacked collaterally except on the ground that it was procured by fraud. There is no allegation or proof in the present action that the decree in the chancery case was procured by fraud. It follows that the decree of the chancellor on this branch of the case was correct and must be affirmed. We now come to the question of the judgment of the Madison probate court ordering the administrator of the estate of Geo. B. Oliver, deceased, to execute to Thos. J. Oliver a deed to an undivided one-half interest in the homestead of decedent. (3-4) The property in controversy was the homestead of Geo. B. Oliver. An order of the probate court directed the administrator of his estate to specifically execute a contract which the decedent had made with his brother before he died. The authority to grant specific performance of an executory contract to convey land against the executor or administrator of a decedent is a special power conferred upon the probate court by sections 209-214 of Kirby’s Digest. It is to be exercised in a special manner and not according to the course of the common law. In eases falling within the usual powers of the probate court, the rule is that where the record is silent with respect to any fact necessary to give the court jurisdiction it will be presumed that the court acted within its jurisdiction. Massey v. Doke, 123 Ark. 211. But where special powers conferred or exercised in special manner, not according to the course of the common law, or where the general powers of the court are exercised over a class not within its ordinary jurisdiction upon the performance of prescribed conditions, no such presumption of jurisdiction will attend the judgment of the court. The facts essential to the exercise of the special jurisdiction must appear in such cases from the record. Beakley v. Ford, 123 Ark. 383. See also, Hindman v. O’Connor, 54 Ark. 627. This distinction was pointed out in Massey v. Doke. (5-6) As we have already seen, the land in controversy was the homestead of Geo. B. Oliver at the time of his death and the probate court had no power to render a judgment of specific performance of an executory contract to convey the homestead. Under the act of March 18, 1887, * a deed purporting to convey the homestead by a married man is void unless his wife joins in the execution of the deed. Davis v. Hale 114 Ark. 426, and cases cited; Stephens v. Stephens, 108 Ark. 53; Newman v. Jacobson, 108 Ark. 297. In the case of Waters v. Hanley, 120 Ark. 465, 179 S. W. 817, in discussing this statute, we said that it is clear that if a husband • can not make a conveyance of the homestead without the concurrence of his wife, he can not make -a contract to convey the homestead' which will be obligatory upon his wife. The reason given was, that if he could do .so, the statute could 'be easily evaded and would be of no force. See also Jarrett v. Jarrett, 113 Ark. 134. Therefore, we are of the opinion that the probate court had no power to make an order for specific performance of the contract made by the decedent- in his life time to convey his homestead to another. (7) We think the order was void for an additional reason. Sections 209 el seq. Kirby’s Digest contemplate that there should be a valid executory contract to convey land made by the decedent before the probate court can order it to be specifically performed. The contract in question was an oral one and no possession was taken under the contract prior to the death of the vendor. The contract then could not have been specifically enforced •had Geo. B. Oliver lived and the purchaser had brought suit against him. Under the rule before announced the judgment of the Madison probate court could only be supported by a record which shows jurisdiction and no presumption -as to its jurisdiction will be indulged. From the views we have expressed it follows that the court erred in not setting aside the order of the Madison probate court, and for that error the decree will be reversed and the cause remanded with directions to enter a decree in accordance with this opinion. Footnotes [*] Act 64, page 90, Acts of 1887 (Rep.)