Hawkins v. Hudson

McCulloch, C. J. This is an action instituted by a commissioner of the chancery court of Lawrence County to recover on a note executed for the purchase of land which was sold by the commissioner under a decree of the court. It is sought to enforce a lien against the land for the payment of the amount of the note. One of the defendants, W. M. Hawkins, was the purchaser of the land at the sale made by the commissioner, and the other two defendants, Covington and Schwegman, were the sureties on his note. The decree under which the sale was made was rendered in an ex parte proceeding instituted in the chancery court of Lawrence County asking for the partition or sale of a certain tract of land in that county. Hawkins was one of the parties to the petition, which was filed by the widow and children of the former deceased owner, and it concluded with a prayer that the land be divided, or that it be sold for partition if it be found that there could be no division without material injury to the rights of the parties. The court rendered a decree for the sale of the land, which, as before stated, was made by the commissioners, and the land was purchased by Hawkins. There was a demurrer to the complaint in the present action, which the court overruled, and defendant failing to plead further, final judgment was rendered against him. The contention is that the original decree under which the sale was made is void for the reason that the record does not affirmatively show' that the land could have been divided in kind. Counsel for appellant cite Moore v. Willey, 77 Ark. 317, in support of their contention, but it will be observed in the case cited that there was a direct appeal from the decree, whereas, in the present instance, the attack on the validity of the original decree is collateral. In disposing óf the question in Moore v. Willey, supra, the court said: “We may admit that the court had jurisdiction, and that the order was not void, but this is a direct attack by appeal, and the question is, was there error in the proceedings?” In a collateral attack on a decree directing the sale of property, mere errors or irregularities do not affect the validity of the sale. If the court had jurisdiction, errors could only be corrected by appeal from the decree itself, and a collateral attack on the decree is not available for the correction of the error. It is also contended that the decree is void for the reason that it awards to the widow a child’s part in the land ordered sold, but that, too, was a mere error which could only be corrected by appeal. The court had jurisdiction to order the sale for partition among the owners, it being conceded that all parties in interest were before the court. Any error of the court with respect to the distribution of the proceeds does not, on collateral .attack, affect the validity of the sale. Decree affirmed.