ON SECOND REHEARING.
Opinion delivered December 10, 1906.
Battle, J.Appellees, in support of their motion, cite and rely on the following Arkansas cases: Boyd v. Roane, 49 Ark. 397; Trapnall v. State Bank, 18 Ark. 53; Woodall v. Delatour, 43 Ark. 521; In re Simmons, 55 Ark. 492.
In Boyd v. Roane, supra, it appears that “in 1868 suit was instituted in the circuit court of Jefferson County, in chancery, to foreclose a mortgage upon lands of John Selden Roane, deceased. The widow and heirs at law, and the administrator of the estate of Roane, were made parties defendant to the bill. The heirs were all minors. Process issued for all the defendants in February of the same year; a guardian ad litem was appointed by the court for the infant defendants; in January, 1869, a decree foreclosing the mortgage was rendered; a sale was made by the court’s commissioner, and A. M. Boyd, the appellant’s ancestor and one Walt, became the purchasers. Walt sold his interest in the lands to his co-purchaser, Boyd. * * * The widow’s dower was afterwards assigned, and Boyd purchased her interest in the land. He entered into possession of the entire tract. * * * Afterwards he discovered that the description of the land in the comissioner’s deed, as well as in the decree of foreclosure, was inaccurate, except as to about 300 acres of the tract; and in September, 1871, he filed a bill in the Jefferson Circuit Court, in chancery, to correct the error and quiet his title. The administrator of the estate and the heirs of Roane, who were still infants, were made defendant; process to bring them into court was regularly served,.and a guardian ad litem was appointed for the infants, who appeared and answered.” The court, after hearing the evidence adduced, corrected the description and quieted the plaintiff’s title to the land. In both these suits the court had jurisdiction.
“In 1884, while.the youngest heir was still a minor, but more than one year after the next youngest had attained the age of twenty-one years, the heirs joined in'a complaint in the Jefferson Circuit Court, in chancery, against A. M. Boyd, to set aside the two decrees above mentioned, to have an acount for the rents and to oust Boyd of the possession.” This court held that this suit, “as far as the infant heirs are concerned, was a statutory proceeding to show cause, while as to the adults it was a bill of review resorted to for the purpose of vacating the decrees to enable them to redeem.”
They sought to set aside the decree in the first suit, because they alleged that there ivas no service of process on any of the parties who were complainants in the last suit, but who were defandants in the suit to foreclose; that there was no defense made for the infants in that suit; that no proof was adduced at the hearing; that the second decree, being in aid of one that was void, could not rectify it. They allege that the second decree was void, because the answer of the guardian ad litem was not a proper denial of the allegations of the bill in that case, and because the only proof adduced upon the hearing was by ex parte affidavits.
In the first suit the record was silent as to the service of process upon the infant defendants. The court held that the presumption is that process was served upon them, and that it could not be contradicted by evidence aliunde.
As to other grounds of the attack upon the decree in the first suit the court said: “The court proceeded erroneously in that suit in pronouncing judgment without a defense from the guardian appointed for the purpose of protecting the interests of the infants, and without proof of the allegations of the bill. * * * But the misconstruction or even the disobedience of the plain provisions of the law in the exercise of jurisdiction once rightly acquired does not make a nullity of the judgment of the circuit court.”
As to the second decree the court said: “The infant’s only claim for vacating the second decree is for alleged errors in procedure. We are by no means sure that there is any reversible error in the proceedings. But, admitting that there is, the statute provides that the complaint in a proceeding by an infant to vacate a judgment shall “set forth the grounds to vacate or modify it, and the defense to the action, and enacts that “a judgment shall not be vacated on motion or complaint until it is adjudged that there is a valid defense to the action.”
In Trapnall v. State Bank, 18 Ark. 52, a judgment in personanv against an infant was attacked on the ground that it was rendered against him without first appointing a guardian to defend for him. The jurisdiction of the court was not questioned. The court held that the failure to appoint the guardian did not render the judgment void, but merely voidable; and that it can be avoided only by appeal, writ of error or some other proceeding to set aside.
Woodall v. Delatour, 43 Ark. 321, was a= suit to enforce a lien for taxes advanced 'by plaintiff to defendants, three of whom were minors. It was alleged that the plaintiff, as agent for the defendants, paid the taxes on the land described, and a tax on personal property, and prayed that the same be charged as a lien on the land described in the complaint. No defense was interposed for the infants; a j udgment by default was entered, charging the entire amount of the taxes, personal as well as real, as a lien on the land, and providing for a sale in default of payment. On appeal this court held that the allegations of the complaint were insufficient to establish a charge against the land; in other words that they did not state a cause of action against the infants, and that decree was erroneous on both the grounds mentioned; that is, by reason of their being no defense made for the infants and because the allegations of the complaint were insufficient to support the decree. But the court had jurisdiction. Woodall v. Moore, 40 Ark. 42. The allegations in the complaint were insufficient, because the plaintiff did not aver therein that he was seized of the lands or had the care of them.
In re Simmons, supra, it appears'ffhat two heirs brought suit against four heirs for partition of lauds descended to them from their father. The defendants were minors. The lands were not .susceptible of division, and were sold. Two of the defendants died during minority. The sole question in the case was, did their portion of the proceeds descend as personalty or realty? The decree or judgment in the case was not an attack for error or want of jurisdiction. In that case the court said: “The provisions of the statute regulating proceedings in partition are applicable to infants”; and that a "judgment in partition is as effective against an infant as against an adult, the only difference which the statute makes in any case being that an infant has a more extended right to set the decree aside for error upon a showing of merits.” But in what cases does the statute authorize a partition? .Section 5770 of Kirby’s Digest provides: “Where lands, tenements or hereditaments shall be held in joint tenancy, tenancy in common, or in co-parenary, however derived or acquired, and whether in ■fee, for years or for life, any one or more of the persons interested may present to the circuit court a petition praying for a division and partition of such premises according to the respective rights of the parties interested therein, and for a sale thereof, if ir shall appear that partition can not be made without great prejudice to the owners.” In such cases courts are vested only with jurisdiction to partition lands. They have no jurisdiction to partition the lands of an infant between him and persons who have no interest therein, and such power can not be conferred upon them. The Constitution prohibits it.
A comparison of the opinions in the foregoing cases with the last opinion in this case will show no conflict or inconsistency, The court in the last opinion do not undertake to say that sales to a stranger under an erroneous judgment are invalid. There is -a difference between erroneous judgments and judgments or decrees which are void for want of jurisdiction. In the former case the erroneous judgment or decree is valid until it is set aside or reversed by a court of competent jurisdiction, and a sale to a stranger under it before that time is valid. Boyd v. Roane, 49 Ark. 416. But no rights can be acquired under a void judgment or decree. All acts performed under it and all acts flowing out of it are void. This distinction is plainly-shown by the opinions in the foregoing cases and the last opinion in this case.
We have not undertaken to determine the rights of parties to a return of proceeds of sale of lands received by appellant, rents of lands and improvements thereon, or other incidents consequent on the recovery of the same. They weret undetermined by the chancery court, and we are without sufficient information to do so. Nunn v. Robertson; 80 Ark. 351.
The, motion for reconsideration is overruled. The decree of the chancery court is set aside, and the cause -is remanded with directions to the court to enter a decree herein in accordance with the opinion of this court and for other proceedings.