With all deference to the opinion of the majority, it appears to me that they proceed from the fundamentally false premise that the probate court is a court of special jurisdiction, acting in the discharge of special powers, which makes it necessary that its right to act affirmatively appear from the face of its proceedings.
One of the landmark cases in our reports is that of Borden v. State, 11 Ark. 519, 44 Am. Dec. 217. After there laying down the rule, which has since been consistently followed, declaring the presumption of verity to be indulged in favor of the judgments and decrees of superior *Page 1094 courts, the learned judge who wrote that opinion said: "The remaining question before us in this case is whether or not the probate court is to be regarded as a superior court within the principles laid down. We answer emphatically that in our opinion it must be so considered. Because it is not only a court of record, but a constitutional court of fixed and permanent character invested with general jurisdiction and plenary powers over the matters committed by law to its peculiar cognizance and open to review by appeal. There is abundant authority thus to hold as to this court, and, if there was not, it would be a matter of serious public concern. Because, while in point of law it is equal, in point of fact it is a more important court to the people of this State than the circuit court. And this will be manifest at once when it is considered that it only requires a period of about forty years to pass every atom of property in the State, real and personal, and many choses in action, through the ordeal of the probate court; while it is estimated that the whole would not be passed through the circuit court in an entire century. We feel freely warranted therefore, not only on the score of authority, but for cogent reasons of public policy, to fix this court upon the footing of superior courts. 11 Serg. Rawle 429; 5 Cranch 173; 2 Howard S.C.R. 340; 6 Peters R. 220."
The doctrine of that case has been many times since recognized, and the opinion in the case of Apel v. Kelsey,52 Ark. 341, 12 S.W. 703, was based upon the recognition of the fact that the probate court was a superior court in favor of whose judgments a presumption of verity must be indulged when collaterally attacked.
The facts in the Apel case were that, in disregard of the mandatory provision of the statute that an administrator give notice of the sale of his interstate's lands in accordance with the provisions of law, an administrator had sold these lands at a private sale. There was no authority in the law for this action. On the contrary, it was done in violation of the provisions of a mandatory statute, yet the sale was confirmed, and when collaterally *Page 1095 attacked it was upheld for the reason there stated that: "It is impossible upon principle to distinguish the question here presented from those so often decided heretofore; and in obedience, to the settled doctrine of this court, fixing the character of the probate court, and the effect of its judgments, we hold that a private sale of land by an administrator, upon order of that court, is not void when confirmed."
Full recognition was this given to the impervious character of probate judgments and orders against collateral attack, for the reason that those courts were superior courts, which exercised a jurisdiction conferred by the Constitution.
The case of Day v. Johnston, 158 Ark. 478,250 S.W. 532, reviews the legislation which resulted from that decision. It was there pointed out that, in delivering the opinion in Apel v. Kelsey, supra, Justice SANDELS had deprecated the state of the law growing out of the prior decisions of the court, which had become rules of property, and the aid of the Legislature was invoked to change the rule giving the same verity to the judgments of probate courts as was given to the judgments of other courts of record. Acting upon this suggestion the next session of the Legislature passed an act entitled, "An act to protect the estates of minors from loss" (Act 106, Acts of 1891, page 189), which provided that "All probate sales of real estate, made pursuant to proceedings not in substantial compliance with statutory provisions, shall be voidable."
In the case of Mobbs v. Millard, 106 Ark. 563,153 S.W. 821, the word "voidable" appearing in this act was construed to mean void.
While this act was the law, the cases of Beakley v. Ford, 123 Ark. 383, 185 S.W. 796; Ex parte Tipton,123 Ark. 389, 185 S.W. 798, and Rushing v. Horner, 130 Ark. 21,196 S.W. 468, were decided.
The case of Day v. Johnston, supra, pointed out that the act of 1891 had changed a rule of property announced *Page 1096 in the Apel v. Kelsey case, and that the act of March 12, 1919 (General Acts of 1919, page 193), entitled, "An act to render conclusive judgments and decrees of the probate court in guardians' and administrators' sales," had re-enacted the rule of property as announced in the Apel case, and the right to change the rule by act of the Legislature was declared in the Day v. Johnston case, where we said: "We gave effect to one act, and we perceive no reason why we should withhold giving effect to the other; and, when we have given it effect, we must hold that the judgments of probate courts become impervious to collateral attack, if they contain the jurisdictional recitals which the General Assembly has determined are essential to constitute a valid sale against collateral attack."
The question here presented is not, whether the homesteads of minors are exempt from sale for the payment of the debts of their ancestors, but is, whether it is within the power of the General Assembly to clothe the judgments of probate courts with an incontrovertible presumption in cases where the Constitution has conferred jurisdiction.
The probate court is a superior court, with a jurisdiction defined by the Constitution, giving it the control of the estates of deceased persons, and the Legislature has the power to clothe the judgments of that court with absolute verity on collateral attack where it has acted within its jurisdiction. Such is the essence of the opinions in the cases of Apel v. Kelsey and Day v. Johnston, and the other cases to which they refer. See also Collins v. Harris, 167 Ark. 372, 267 S.W. 781.
It is not questioned by the majority that the provisions of the act of 1919 apply to the sale here under review if they can be made to do so. The sale here attacked contains the recitals required by the act of 1919 to make the curative quality of that act applicable, but the majority say the act cannot cure a sale of a homestead for the payment of the intestate's debts because the Constitution exempts the homestead from such sale. *Page 1097
It does not appear from the face of the record before us that the land sold comprised the homestead of the debtor and was sold in payment of his debts. It does appear that the court order fixed the place of sale at the "late residence" of the intestate, but it does not affirmatively appear that this residence was a part of the land ordered to be sold. Besides, a residence is not necessarily a homestead. The presumption, therefore, might well be indulged that in ordering the sale the probate court had found that the land ordered to be sold did not comprise a homestead, and such a presumption must necessarily be indulged if we are to give the same presumption of verity in favor of probate judgments as is indulged in favor of the judgments of other superior courts.
The majority recite and rely upon Waggener v. Lyles,29 Ark. 47, and other similar cases. In the Waggener case it was said: "The objection to the validity of the proceedings of the probate court are not that the court has acted in excess of its powers, or that some act necessary to perfect its jurisdiction has not been complied with; but that the subject-matter submitted to it was one of which it could take no jurisdiction whatever; and when such is the case, whether in collateral or direct proceedings, the fact being apparent upon the record, such orders and proceedings are treated as nullities."
There is no question about the jurisdiction of the probate court over the estate. It not only had jurisdiction, but it had exclusive jurisdiction, and upon the proper showing could have ordered a sale of the land. It may have improperly ordered the sale of the land. It might erroneously have found that the land was not a homestead, or that the minors had come of age, but it had the jurisdiction to determine these facts and its finding was not in excess of its jurisdiction.
In the case of Blanton v. Forrest City Mfg. Co.,138 Ark. 508, 212 S.W. 330, it was said: "In determining the validity of a judgment upon collateral attack, a distinction must be observed between those facts which involve *Page 1098 the jurisdiction of the court over the parties and subject-matter and those quasi jurisdictional facts without allegation of which the court cannot properly proceed and without proof of which a decree should not be made."
Here the probate court had jurisdiction of the parties and of the subject-matter. It should not have ordered the sale of the homestead to pay debts, but it does not appear from the face of the record that it did so. The presumption should therefore be indulged that the court made such a finding of fact as warranted the order made, although it now appears that the court was in error in its finding upon the facts upon which the jurisdiction was exercised.
The testimony in the record now before us does not show that the probate court acted upon a matter in connection with a subject of which it could not take jurisdiction, but only that its action was premature or upon an erroneous finding of fact, but neither the prematurity of its action nor the error in the finding of fact affirmatively appears from the order attacked. The action of the court in prematurely exercising its jurisdiction or in erroneously finding the facts was an error to be cured on appeal, and was not such an inherent defect or lack of power as to render the order of the court subject to be collaterally questioned, as it emanated from a court of superior jurisdiction, acting within its jurisdiction.
It does not appear therefore that the action of the court in ordering the sale of the land was coram non judice.
The majority say that the youngest child of Wimberly, the intestate, was only twenty-two years old when the suit was brought, and he was not therefore barred by limitation. The exact age of this youngest child, as shown by his own testimony, at the time of the institution of this suit, was twenty-two years and five months. Five months more than one year had therefore elapsed after this youngest child came of age before the institution of this suit, and he, as well as the other heirs, should be held barred by the act of 1919. *Page 1099
Section 1 of this act reads as follows: "That, in all guardians' and administrators' sales heretofore or hereafter made, the finding and recital in the judgment or decree of the probate court authorizing and ordering any such sale, that the guardian or administrator was duly and legally appointed and qualified, that the sale was conducted according to law, and that the facts set forth in the petition entitled the said guardian or administrator to make the said sale, shall be conclusive and binding on all parties having or claiming an interest in the said sale, save upon direct appeal to the circuit court, made in such cases as are now provided by law; and such finding and judgment or decree of the probate court shall not be open to collateral attack, save for fraud or duress. Provided that, as to sales heretofore made, all parties having any interests therein shall have twelve months after the passage of this act in which to attack such sales."
In the case of Day v. Johnston, supra, we said that: "The act, in so far as it relates to sales heretofore made, might well be sustained as a statute of limitations, as a reasonable time (one year) was allowed after the act was passed in which an interested party could prevent the consequences of the act falling upon him. Towson v. Denson, 74 Ark. 302, 86 S.W. 661, and cases there cited to this point. Cottonwood Lumber Co. v. Hardin, 78 Ark. 95,92 S.W. 1118."
Because of the fact, as was there pointed out, that the act applied to future as well as to past sales, we considered and passed up on the constitutionality of the act in the Day case, and held that it was constitutional.
The instant suit was not brought until long after the year had expired which the act allowed for suits to be brought to attack sales under orders and judgments of the probate court which contained the recitals declared by the act to be essential and sufficient to constitute a valid judgment, and, as there is no saving clause in favor of infants, they, as well as all others, would be barred after one year. But, in any event, it would appear that *Page 1100 the strictest construction of this act possible would be to hold that the year of limitation did not commence to run until the homestead estate had expired. Kessinger v. Wilson, 53 Ark. 400, 14 S.W. 96. But, as has been said, more than one year expired after the termination of the homestead estate before the institution of this suit, and, as the heirs and their vendees did not avail themselves of the saving clause in the act, they should be held barred by it.
For the reasons herein stated, I think the decree of the court below should be reversed; and I am authorized to say that Justices WOOD and KIRBY concur in the views here expressed.