¶1ON RRHRARING.
¶2Opinion delivered July 2, 1906.
¶3Gustave Jones, P. R. Andrews, H. F. Roleson, N. W. Norton and U. M. Rose, for appellant; Rose, Hemingway & Rose, of counsel.
¶41. 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. 5 Ark. 214; 14 Ark. 545; 3 Ark. 494; 45 Ark. 514; 1 Ark. 257; lb. 275; 5 Ark. 37; 7 Ark. 75. The jurisdiction of the probate court in this class of cases is exclusive. Gantt’s Digest, § § 1184, 1185; 44 Ark. 269. In American courts the preponderance of authority is against the exercise of this jurisdiction by chancery courts. 3 Pom. Eq. § 1309; Bispham’s Eq. § 550; 6 Am. & Eng. Dec. in Eq. 488, note. • The power to sell the lands of an infant is purely statutory, and such sales without strict compliance with the law are nullities. Woerner, Guardianship, § 70.
¶52. A purchaser under execution or at a judicial sale must take notice 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. 10 Ark. 181; 36 Am. Dec. 427; 2 Gilman, 151; 1 Id. 131; 2 Johns. 281; 13 N. Y. L. 271; 9 Am. Dec. 767; 11 Id. 704; 19 Id. 225; Ib. 535; 16 Id. 101; 22 Id. 486; 4 Wheat. 506; 23 Fed. Cas. 389; 2 Freeman, Judg. § 509; 30 Ind. 332; 95 Am. Dec. 699; 3 How. 342; 6 Pet. 729. See, also, 98 Am. Dec. 551; 12 Id. 225. Wherever a decree shows fraud on its face, a purchaser under it can not be an innocent. purchaser. 1 Minn. 183; 3 Id. 277; 44 Tex. 517; 9 How. 1.
¶63. 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. 5 Ark. 576; 6 Ark. 102; 26 Ark. 214; 56 Ark. 171. In the opinion handed down the court, when, in effect, the}' hold that a guardian has the power to compromise all suits of whatever kind against his ward, and that the compromise in this case is valid, assert precisely the reverse of what has been twice previously asserted in this case. 71 Ark. 173; 70 Ark. 84. It is plain that no appeal will lie from a consent decree. 2 Enc. PI. & Pr. 99; 32 Ark. 74.
¶7And 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. 14 Ark. 203.
¶8The 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 Ark. 629; 20 Ark. 377; 19 Ark. 16. Such amendment could only be made on proper application and notice. 51 Ark. 323; 20 Ark. 635; 23 Ark. 18; 34 Ark. 300; 72 Ark. 185.
¶94. 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; Broom, Leg. Max. 341, 736; 93 U. S. 167; 16 Wall. 365; 2 Freeman, Judg. § § 486, 489; 129 U. S. 99; in U. S. 667; 17 Ark. 512; 65 Ark. 566; 73 Ark. 281; Ib. 444. Confirmation does not condone fraud. 10 W.Va. 143; 23 Graft. 423. A fraudulent judgment is a nullity, and bars no one. 28 La. Ann. 333; 39 Tex. 168; 33 Ark. 429. A purchaser acquires a valid title under a judgment only when it is valid on its face, and apparently free from fraud. 72 Ark. 304; 38 Ark. 196.
¶105. 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. 71 Ark. 173.
¶11The purchaser at a guardian’s sale must make inquiry as to the title, and the guardian’s authority to sell. 32 Ark. 324. Without the order of a court of competent jurisdiction, a guardian has no authority to compromise in behalf of his ward. Woerner, Guardianship, 184.
¶126. The guardian had no power to compromise. The rights of infants can in no case be affected except upon issues and proof. 39 Ark. 237; 43 Ark. 428; 47 Ark. 456; lb. 300; 31 Ark. 233; 70 Ark. 84; 71 Ark. 173; 97 N. W. 863, and cases cited; 15 Am. & Eng. of E. 57; 47 Ark. 297; 53 Ark. 307; 10 Enc. PI. & Pr. 589. The rights of infants can not be confiscated by consent decrees, even without a statute. 1 S. E. 605; 13 S. & M. 137; 9 Humph. 129; 102 El. S. 312; 158 U. S. 146. If a guardian exceeds his authority, even with the consent of the chancellor, the decree is void. 8 How. 669.
¶137. The decree is void because not based on the pleadings. 7 Ark. 516; 93 EJ. S. 282; 55 Ark. 205; lb. 565; 30 Ark. 628; 13 Ark. 188; 11 Ark. 135; 46 Ark. 103; 41 Ark. 394; 12 Ark. 288; 9 Pet. 415; 24 Ark. 381; 29 Ark. 500; 12 Ark. 288; 24 Atl. 229. Such being the case, it is not material whether E. B. McDonald knew that it was void or not, for “in legal effect it is no judgment. By it no rights are divested. From it no rights can be obtained,” etc. 58 Ark. 186. See, also, 62 Ark. 443.
¶14A judgment of a court outside the issues presented is a nullity.. 4 Coldw. 621; 93 U. S. 282; 53 Ark. 565; lb. 205; 109 EE S. 267; 68 Fed. 44; 56 Ark. 422; 64 Ark. 301.
¶15In 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. 50 Md. 570; 3 Wend. 15; 55 Ark. 565; 13 Pet. 174; Kirby’s Digest, § 3801. As to the partition proceeding, there was not only a failure to state a cause of action, but an affirmative showing of no cause of action. Therefore the decree will be treated as void, whether atacked directly or in a collateral proceeding. 62 Ark. 443; 11 Wall. 350. Legal presumptions must be based upon facts, and it will not be presumed that the facts are otherwise than as shown by the record. 11 Ark. 236: 56 Ark. 17; 50 Ark. 390; 55 Ark. 216.
¶168. 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.
¶17When 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. 42 Ark. 308. Nor can it supply any supposed defect in legislation. End. Stat. § § 18, 22. See, also, 49 Ark. 416; 70 Ark. 415. Compare Carroll, Ky. Codes, § 391. When a statute is revised, or one act framed from another, some parts being omitted, the parts omitted are not to be revived by construction, but are to be considered as annulled. 42 Me. 55; 1 Pide. 44; lb. 155; 2 Crawford’s Digest, Col. 1713; lb. Col. 1700. Even if L. B. McDonald should be held as an innocent purchaser, it would be requisite to render a decree against the plaintiffs in the “family settlement” decree for the value of one half of the land confiscated under that decree as prayed in the petition for restitution. 65 Ark. 556. On such a demand the statute does not begin to run until after reversal of the decree. 2 Freeman, Judgts. § 482. The five years statute has no application. It was a part of the Revised Statutes of 1838, while the statute authorizing infants to show cause against judgments went into effect in 1869, and subsequent laws repeal those before enacted to the contrary. Broom, Leg. Max. 27.
¶18I. M. Moore and W. B. Smith, for appellees.
¶19Examination 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.
¶20The 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. 55 Ark. 492.
¶21The 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 the statute can have no application to the statute of limitations applicable to judicial sales. .
¶22We 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 decree in question was made in conformity with this compromise.
¶23The 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, 71 Ark. 168. This is the settled law of this case, and can not^be re-examined in this suit, modified or set asider Pulaski County v. Lincoln, 13 Ark. 103; Biscoe V. Tucker, 14 Ark. 515; Baxter v. Brooks, 29 Ark. 173; Perry v. Little Rock & Ft. S. R. Co., 44 Ark. 383; Vogel v. Little Rock, 55 Ark. 609; Dyer v. Ambleton, 56 Ark. 171.
¶24The decree of the court was without jurisdiction.
¶25As said in Railway Company v. State, 55 Ark. 205: “Jurisdiction is defined to be 'the right to adjudicate concerning the subject-matter in given cases.’ To constitute this there are three essentials: First, the court must have cognizance of the class of cases to which the one to be adjudged belongs. Second, the proper parties must be present. And, third, the point decided must be, in substance and effect, within the issue.” Railway Company v. State, 55 Ark. 205; Windsor v. McVeigh, 93 U. S. 274; Falls v. Wright, 55 Ark. 565; Elsey v. Falconer, 56 Ark. 422; Hall v. Melvin, 62 Ark. 439; Cowling v. Nelson, 76 Ark. 146; 1 Black on Judgments, 242; Bliss on Code Pleading, § 161.
¶26The 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.
¶27Sallie Spott Rankin, then Gibson, answered and denied that plaintiffs were 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.
¶28The issue was, who were the heirs of John N. S. Gibson, deceased, the plaintiffs or Sallie Spott Rankin?
¶29The 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 consent, 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, 58 Ark. 186.
¶30Mrs. 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 the 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, 70 Ark. 417, this court held that this statute applies to cases “where the effect of the decree is to divest the infant of an interest in land.” The case before us comes clearly within the provision of this statute.
¶31Under 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 property. 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.
¶32Section 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, 50 Ark. 132. Under it judgments and decrees against infants do not become absolute until the expiration of the time allowed to show cause. 1 Daniell, Chancery Practice, 165, 175. By it all rights claimed under a void judgment or decree and sales thereunder are held in abeyance until the time to show cause has expired. Stanley v. Brannon, 6 Blackf. 193. They, of course, can not rise higher than their source. The statute, ex proprio vigore, stays statutes of limitations until that time. It wisely and beneficently provides for the protection of the infant. It may be well in this connection to say that “mere irregularities and errors in the proceedings of the court will not, under this statute invalidate a sale to a stranger, or prevent a good title from being made” to him. 1 Danl. Ch. Pr. 168.
¶33Parties 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, 50 Ark. 322; Blanton v. Rose, 70 Ark. 415. They are not innocent purchasers.
¶34Reversed and remanded for decree and proceedings consistent with this opinion.