Opinion on Rehearing
Appellants (plaintiffs below) are the widow and collateral heirs of B. J. Hildreth. They sued Dendy and others to redeem from sale under foreclosure incident to a mortgage executed by B. J. Hildreth covering 95 acres. J. E. Eubanks was trustee for Dendy, the mortgagee. The latter purchased at the sale. Confirmation was had in October, 1934. In the decree of July, 1934, the interests of more than thirty defendants were foreclosed, some being minors. As to the infants who were made parties, guardians ad litem were appointed and proper defenses were made.
In the suit from which this appeal comes the only allegation necessary to consider is that at the time of foreclosure Thomas Hildreth was a minor. He is a gránd nephew of the ancestor through whom the heirs claim, and was not of age when the suit at bar was' brought. Admission of this minor’s l/64th interest in the land was made by appellee. It was also conceded that this minor was not made a party to the 1934 proceedings. In an amendment to Dendy’s answer in the case at bar there was the statement that as mortgagee he was willing to apportion the security and to accept from Thomas that portion of the debt, interest, and cost, assessable against his estate. The plaintiffs then moved for a decree on their pleadings, insisting that the minor had a right to pay the entire debt and to redeem not only for himself, but for his co-plaintiffs as well.
The rule contended for, if sustained, would establish the precedent that sui juris defendants inheriting from a common source subject to debt, also infants similarly situated, and a widow who joined in her husband’s mortgage or deed of trust, may stand by in respect of a decree to which they are parties without a defense, and after years have lapsed may join with a minor of whose existence neither they nor the mortgagee was aware, and supply the unserved minor with financial means for redemption in a proceeding against which any innocent purchaser is helpless.
A rule so drastic would have the effect of making-insecure property holdings acquired in the utmost good faith, and would render uncertain many titles based upon foreclosure and confirmation decrees. Nor can it be successfully contended that denial of appellants’ demands may impair the inviolable nature of an infant’s inheritance. As to such infant not served with summons, his equity remains undisturbed; and, when ascertained, all of the rights originally inhering to the estate stand as though no action had been taken by the mortgagee. The infant is a tenant in common with the purchaser, or with any claiming through such purchaser. If waste has been committed the infant has a right of action against the wasters limited only by the value of such unauthorized destruction, appropriation or impairment. If improvements have been made the infant shares in the increments ; and he may, if the property is not susceptible of division in kind, require sale and an accounting.
In Norris v. Scroggins, 175 Ark. 50, 297 S. W. 1022, and cases relied upon by appellants, there is reference to Pomeroy’s Equity Jurisprudence, third volume, § 1220, where the right of one having a legal or equitable estate in mortgaged property held in privity with the mortgagor is discussed. The rule there stated is predicated upon the proposition that where a debt secured by mortgage is a unit, a partially interested person cannot compel the mortgagee to receive less than the whole debt if effect of acceptance is to relieve the property, pro tanto, of the lien. The point to which Pomeroy addresses his discussion is not whether an infant asserting an interest not foreclosed may set aside an old decree which foreclosed other interests, and redeem the entire property over protests of the mortgagee-purchaser who elects to apportion, hut whether, prior to foreclosure, one having a legal or equitable interest in privity with the mortgagor has the right to pay the entire debt at a time when all the mortgagee «an insist upon is payment of the obligation.
Appellants insist that the construction they give the Scroggins case was followed and applied in Baker v. Boyd, 196 Ark. 563, 119 S. W. 2d 524.
In the Scroggins case there were two trust deeds. It was held that action of the trustee in foreclosing under power was ineffectual because procedural methods designated by the parties in the trust deed were not followed. Therefore, said Mr. Justice Wood, who wrote the court’s opinion, “. . . the sale and the trustee’s deed were void unless the deed of trust conferred upon the trustee the power to make the sale as he did make it, which is not the case.” ' 175 Ark. 50, 297 S. W. 1025.
Non-applicability of the Baker case to the appeal before us rests in the fact that in the second suit Baker insisted that void descriptions in the decree be corrected, and that action of the court in the first litigation be confirmed. Expressed differently, Baker, without agreeing that the minors might redeem, contended that . . this relief should be denied for the reason that all the heirs were properly before the court, and there was .an accurate description of one 40-acre tract.” The court said: “But the minors were interested in all the lands, which appear to have been sold as a unit, and the defective description of these two tracts contained in the unit makes the sale thereof void, for the reason that . . . two 25-acre tracts were foreclosed and sold under a description which is conceded to be void.”
The Baker case, it will be seen, goes no further than to say that the mortgagee, prior to foreclosure, is only entitled to have his debt paid; and if a foreclosure, either under power or 'by resort to chancery, is void, the minor stands in the position he occupied before the sale. He may pay the entire debt and redeem for all because, in legal contemplation, there has been no sale.
In Rowland v. Griffin, 179 Ark. 421, 16 S. W. 2d 457, Mr. Justice Wood discussed the opinion he wrote in the Norris-Scroggins case, and said: “. . . although the widow and adult heirs of the maker of the deed of trust may have estopped themselves bj^ their conduct from maintaining the action, this did not affect the right of the plaintiffs, who were minors, to maintain the action to set aside the trustee’s deed and to allow them to redeem the property for themselves and their co-tenants and to hold the defendants to an accounting as a mortgagee in possession.” Here is an express recognition that in an appropriate case, even where the foreclosure was void, estoppel- may defeat the former rights of those against whom the mortgagee had an original cause of action.
A headnote to the Rowland-Griffin case is: “A subsequent purchaser of an undivided one-eighth interest in minerals, who was not made a party to the proceedings for foreclosure of a pre-existing deed of trust on the premises, was not entitled to redeem the entire property from foreclosure sale, and become subrogated to the rights of the purchaser at such sale, without first making an attempt to redeem his proportionate part of the premises, followed by a refusal of the purchaser at the foreclosure sale to apportion the debt so as to permit redemption of the subsequent purchaser’s part.” See Railway Company v. James, 54 Ark. 81, 15 S. W. 15.
In the case at bar there was an offer to permit the minor to pay his proportionate part of the debt, and to redeem his estate.
Cases are cited in 31 Corpus Juris, § 266, to the effect that “Where the court has not obtained jurisdiction of the infant by service of process and no guardian ad litem has been appointed for him, then the judgment is void. Adult parties cannot invoke the infancy of another party not represented by guardian ad litem to set aside the decree as to themselves.”
Thomas Hildreth was not served with summons and was not represented by guardian. Therefore, as to him, the judgment is -without force. It is not necessary here to draw a distinction between void and voidable decrees and judgments other than for the purpose of showing that the defendants who were served and were foreclosed cannot profit by the mortgagee’s failure to procure a decree divesting the minor’s interest.
Appellants (other than Thomas Hildreth) sat by for four years after their interests had been divested; and they now ask that there be restored to them that which the court, in 1934, decreed should be taken in satisfaction of the mortgagor’s debt. As has been shown, the right of an infant to redeem his own estate and the equitable or legal-interests of other tenants in common with him exists only where there has been no foreclosure of the interests of others for whose benefit he seeks to redeem, or where, because of jurisdictional matters, an attempted foreclosure is void.
The chancellor correctly announced the law; hence, the decree must be affirmed. It is so ordered.