Clarksville weekly chronicle. (Clarksville, Tenn.) 1873-1890, 1880-03-06

of the County Court of Pleas and
Quarter Sessions. This class is liti-
gated in the suit against John F.
Couts, Z. V. Harrison and others.
The second class embraces prop
erty sold by the Sheriff of Mont
gomery county under executions
from the same court in the year
1920. Under these executions deeds
to the property were made by the
Sheriff to the purchasers. This class
was litigated in the suit against $.
Hodgscn, w. Drane, j. p. Y. Whit
field and others.
CLASS 1.
Helen Pope ct ais. VS.. John F. Couts, E. v
Harrison ct ais.
These bills attack the sales made
by the Sheriff under execution from
the court, on the following grounds
That complainants' ancestor, Ben
net Searcy, died the owner of the
real estate described in the bills
that suit was instituted in the
County Court of Pleas and Quarter
Sessions VS.. his Administrators by
certain of his creditors and judg
ments obtained; that thereafter in
the same court, scire facias issued
on each of said judgments, and
! judgments were obtained in each
case ordering executions to issue
against the real estate of said Bennett
Searcy, descended to his heirs, Ma
ria and Marcia s. Mclean, to satisfy
said judgments respectively that
executions did issue accordingly,
were levied on said realty, the same
was sold, and deeds thereto in each
case executed by the Sheriff to the
purchasers; that defendants by
mesne conveyances are in posses
| sion of and claim to be the owners
in fee of said property.
They do not question the validity
of the judgments against the adj
4 ministratOrs, all of which recite
upon their face that the plea of
p[ene odaainiStTdUit was found in
| favor of the administrators.
They charge, however, that in
the further proceedings to subject
said real estate to the satisfaction of
said judgments, writs of scire facias
were issued alone for the guardian
and served only upon him; that no
scire facias was in fact issued for
said minors and none served upon
them in either case, and they charge
that therefore each and all of said
judgments ordering executions VS..
| their real estate were utterly void
as to them; that the executions
issued thereon, levy and sale there
under and deeds of the Sheriff pur-
suant thereto, were without author
ity of law and a nullity as to said
minors and conveyed no interest
whatever in said realty except the
life estate of said C.. d. Mclean, the
! tenant, who was tenant by courtesy,
| Conceding on the face of each bill
! that said life estate was conveyed.
they cOncede also that they are not
| entitled to present possession, said
Q. d. Mclean being still alive, but
only to the remainder interest in
said property. They charge that
defendants claim to be the owners
in fee thereof, fetters, eTigplsess S,ri an 81
| their interest in remainder; that it
/ 40 q N1Odd
| they ask that it be removed and
that their estate in remainder in
and to said property be established
and declared. They file q certified
copy of so much of the record in
each case as remains on file as ex-
hibits to the bills, conceding that a
portion of the record in each case
has been lost or destroyed and the
clerks certificate to each record
showing the same fact.
The defendants in both cases have
demurred, assigning substantially
the same ground of demurrer to
each bill.
The first ground of demurrer has
not been seriously insisted on, is not
well taken and is overruled. The
demurrer "for want of equity on the
thetface of the bill' is too general
and is also overruled.
The second and third and others
of the grounds assigned are sub
stantially the same, stating the
same cause in different forms, viz:
That the judgments attacked con-
Stitute a part of the eUiQence on
which defendants rely for their
title; the bills so state and attack
them as such evidence, and not di-
rectly; that the judgments are valid
on their face and were rendered by
court of general Jurisdiction; that |
the attack is a collateral one, and |
that they cannot be thus attacked. |
The cOmplainants cOncede that their |
attack is collateral one and not |
direct.
The question thus presented then
is, can these judgments be thus at
tackled and avoided?
1t is a general principle that in |
the matter of impeaching domestic |
judgments for want Of jurisdiction,
there is a broad distinction made |
between courts of superior or gene.
raj jurisdiction and those of inferior
or limited and special Jurisdiction.
The rule in relation thereto is thus
succinctly stated: Nothing is to be
presumed to be out of the jurisdic-
ton of a court of general jurisdic-
ton but that which specially APP
pears to be so. On the contrary,
nothing shall be intended to be
within the jurisdiction of an inferior
court but that which is specially
alleged" This rule has been recog-
nized and approved by our own
Supreme Court. (6 Humphreys,
37S, I'd head, 257.)
The principle, then, may be stated
thus: The judgment of a domestic
court of general jurisdiction is not
void, except when the court has no
jurisdiction of the subject matter of
the suit, or, when having jurisdic-
ton of the subject matter, it is shown
BIZ the record to have had no juris-
diction over the judgment of de-
PENDANT, and if the record is silent
as to the existence of any jurisdic-
tional fact it will be presumed,
upon a collateral attack, that the
court, if one of general jurisdiction,
has acted correctly and with due
authority, and its judgment will be
as valid as if every fact necessary
to jurisdiction affirmatively APP
peared. (Freeman on Judgments,
Sections, 124, 131; 5 Canch, 173; 2
Head, 257; 10 Peters, 449; Hump,
378; Peters, 1913; 2 Howard, 419.
Void Judicial Sales, page
a.
1t becomes a material question,
then, to determine whether the
thus collaterally attacked
r Il