
    Stewart, etc., v. Kellough et al.
    
      Judgments — Vacating after term — Section SI, General Code— Proceedings by 'persons under disability — Section 11641, General Code — Title to realty unaffected, when — Section 1163S, General Code — Judgment in will-contest — Purchaser of property protected, when — Rule of Us pendens inapplicable, when —Infant represented by guardian ad litem — Torrens law.
    
    1. Sections 11631 to 11641, General Code, authorizing the vacation of judgments after term, are in pari materia; a party seeking the favor of Section 11631, General Code, can not ignore the limitation thereon imposed by Section 11633, General Code, which provides that title to property acquired by a purchaser in good faith in consequence of the judgment sought to be vacated “shall not be affected” by such ■proceedings to vacate.
    2. The will-contest proceedings in the instant case involved the title to property acquired by the purchaser, and if the property was purchased in good faith, in consequence of the judgment setting aside the will, the purchaser’s title is protected against a party thereafter seeking the vacation of such judgment under favor of Section 11631, General Code. The rule of lis pendens does not extend that maxim so, as to include the time pending which such vacation may be sought, even though the party seeking the vacation be an infant.
    (No. 16962
    Decided March 14, 1922.)
    Error to the Court of Appeals of Champaign county.
    In the court of common pleas of Champaign county defendant in error Jesse P. Kellough instituted a proceeding under the Torrens Law, to have his title to certain real estate and charges thereon determined and registered under the provisions of that law. Among other parties defendant named in his application were The Buckeye State Building & Loan Company, which held a mortgage for $22,000 upon the property, and William C. lviess, the grantee of another mortgage for $8,000, both of these mortgages having been recorded in March, 1936. Another, and a chief party to the proceeding, who was made defendant, was Lucille Stewart, a minor, whom the plaintiff alleged to have a claim against the real estate which was a cloud upon his titie. The application specifically alleged that this claim arose under the will of one William Stewart, the minor’s grandfather, which will was admitted to probate on the 25th day of January, 1909, and its validity later contested in the common pleas court of Champaign county, in a case wherein Lucille Stewart was one of the parties defendant, in which suit the will, was found not. to be the will of William Stewart, deceased: that on June 14. 1909, judgment, was entered on the verdict, which judgment was still in force and effect, and had not been vacated, reversed or set aside. Since the proceedings in this case for registry of title were later appealed to the court of appeals, it will suffice to allude to the issues of fact made in the latter court, upon which that court pronounced its judgment.
    The various pleadings were amended from time to time, before the final trial in the court of appeals, where the chief opposition to the registry of title was made by said Lucille Stewart, still a minor, through her guardian ad litem, J. T. Journell. In the court of appeals Journell, guardian ad litem, filed for her a third amended answer and cross-petition to the application of the plaintiff Kellough, alleging that her grandfather, William Stewart, had died intestate on January 15, 1909; that his will was probated on the 25th day of January, 1909, whereby the lands described in the application were devised to the minor in fee simple, subject to certain life estates ; that on the 20th day of February, 1909, a suit was eollusively instituted by the minor’s father, mother and grandmother Stewart to contest the validity of the will; that in that action the minor was made a party defendant at a time when she was five years of age and under the control of her father and mother; and that her parents and grandmother and guardian ad Mem appointed by the court, by concerted action for the purpose of defrauding the minor of her inheritance, made no defense whatever to the action and no effort to sustain the will, but on the contrary the guardian ad Mem assisted in causing the will to be set aside. The answer further alleges that the record in the will-contest case discloses service upon the minor by delivering a copy of the summons to her and also to her father, William A. Stewart, who was one of the plaintiffs in the suit To this cross-petition of the minor, plaintiff filed his answer, in which he admitted the institution of the will-contest suit, the infantile age of the minor, the service of summons by copy delivered to her and her father, and then denied each and every allegation in her cross-petition not expressly admitted. This included the denial of any scheme or concerted action for the purpose of defrauding the minor as alleged in her answer. As a second defense the plaintiff alleged that he purchased the real estate in question, subsequent to the judgment rendered invalidating the will; that he paid full value therefor after examination of the record, relying upon said record for his title, and that he had no knowledge or notice of the alleged infirmities in the record set out in her cross-petition.
    The mortgagees (one of whom was an assignee) answered setting forth their claims. At this stage the case was presented to the court of appeals upon the petition of the plaintiff and supplements thereto; the third amended answer and cross-petition of Lucille Stewart, a minor, by her guardian ad litem', the demurrer of plaintiff to the third amended answer and cross-petition of the minor; the answer of plaintiff to the cross-petition of said minor; the demurrer of the minor to the second defense of the plaintiff’s answer; and the motion of the defendant Lucille Stewart for a judgment in her favor on the pleadings.
    On September 13, 1920, the court of appeals overruled the plaintiff’s demurrer to the answer of the defendant Lucille Stewart; overruled the demurrer of Lucille Stewart to plaintiff’s second defense to her answer and cross-petition, and overruled the motion of defendant Lucille Stewart for a judgment in her favor upon the pleadings. Thereupon the cause was retained for hearing upon the evidence, and the defendant Lucille Stewart was granted leave to plead to the second defense of the answer to the cross-petition of the plaintiff, to-wit, that of innocent purchaser. On September 20,1920, Lucille Stewart, by her guardian ad litem, filed a reply to such second defense, which was a general denial of the allegations therein contained; and on January 3, 1921, the court of appeals rendered its final judgment upon the issues of fact, wherein it held as follows: “The court do further find upon the issues joined between the plaintiff, Jesse P. Kellough and the defendant, Lucille Stewart and J. T. Journell, her guardian ad litem, in favor of the plaintiff and against said defendants.”
    Thereupon the court of appeals ordered the registration of the title in the plaintiff, subject to the payment of the mortgages plead by the mortgagee defendants aforesaid. Whereupon the plaintiff instituted her proceeding in this court to reverse the judgment of the court of appeals.
    
      Messrs. Johnson S Miller; Messrs. Buroker & Zimmer and Mr. E. W. Houston, for plaintiff in error.
    
      Mr. G. V. Fromme; Messrs. Deaton, Bodey & Bodey; Messrs. Post & Reid; Messrs. Hidy & Sanderson; Mr. Thomas B. Owen; Messrs. BuroJcer & Zimmer and Messrs. Wilson do Rector, for defendants in error.
   Jones, J.

No bill of exceptions was taken or filed in this cause. On the issues joined between the parties the court of appeals found in favor of the plaintiff and against the defendants. It necessarily follows that the same court found that the plaintiff, Kellough, was a bona fide purchaser for value, and that he purchased the lands in controversy after the will of William Stewart was set aside in June, 1909. Because of the journal entry of the court of appeals, and since the issue of actual fraud, conspiracy and concerted action, alleged to have been taken by the parties in the will-contest suit, was denied by the plaintiff below, that issue also passed out of the case and must be taken not to have been proven. We are, therefore, confined to the legal questions arising from the undisputed facts contained in the pleadings and the entry made by the court of appeals, finding the disputed facts in favor of the plaintiff.

It is conceded that William Stewart, grandfather of the minor, died leaving a will, which was probated on January 25, 1909 ; that an action was instituted to contest that will, wherein service was made upon the infant by a copy thereof delivered to her, and to her father; and that a guardian ad litem of the infant was appointed in that suit and a hearing had resulting in a verdict setting aside the will, followed by a judgment to that effect June 14,1909'.

It is now contended by the infant plaintiff in error that by virtue of certain statutory limitations the will-contest case was tolled as lis pend&m in favor of the infant during the entire period allowed by statute for the vacation of that judgment in favor of the infant. It is also urged by plaintiff in error that in view of those rights of vacation vouchsafed to the infant, no proceedings instituted under the Torrens Law could have the effect of compelling the infant to submit her challenge to the judgment in the will-contest suit until a certain period after she became of full age. From the facts alleged in the infant’s answer it is evident that the judgment of the common pleas court in the will-contest case was attacked because of “fraud practiced by the successful party in obtaining” the judgment. Under the provisions of Section 11631, G-eneral Code, the court of common pleas could vacate that judgment after the term on the ground alleged, or for any “errors in a judgment, shown by an infant within twelve months after arriving at full age as prescribed in Section eleven thousand six hundred and three.”

Section 11603, General Code, provides that it shall not be necessary for the minor to reserve in the judgment its right to show cause against it after attaining the age of majority, but that nevertheless such minor may within one year after majority show cause against such order or judgment.

What may have been the minor’s rights, as between the parties to the will-contest litigation, and whether such could be ignored in the proceeding instituted under the Torrens Law during its infancy, we do not determine, since in the aspect this case has assumed the character of the title obtained by Kellough must necessarily control here.

Kellough purchased the lands on March 13, 1916, a date subsequent to the judgment in the will-contest case and prior to any action instituted by- the infant seeking a vacation of that judgment. The court of appeals found that Kellough was an innocent purchaser for value. He relies for the protection of his title upon Section 11633, General Code, which is as follows: ‘ ‘ The title to property which is the subject of the judgment or order sought to be opened, and which, by or in consequence of the judgment or order has passed to a purchaser in good faith, shall not be affected by proceedings under the next two preceding sections.”

Whatever remedy the infant may have had for relief against the judgment in the will-contest case is found in the chapter entitled “Other Relief After Judgment.” The infant sought to avail itself of the remedies providing for relief after the term at which such judgment was made by seeking its vacation under the provisions of Section 11631, General Code. The section immediately following, Section 11632, General Code, provides for vacation by a party who has been served by publication only. The section immediately following, Section 11633, which is quoted above, provides that the title to property which is the subject of the judgment sought to be opened, and which in consequence of the judgment has passed to a purchaser in good faith, shall not be affected by proceedings under the two preceding sections.

These three sections are in pari materia. The first two provide for the manner and cause for which a judgment may be vacated after term. The last-quoted section provides that the title shall not be affected by the proceedings brought under either of the preceding sections.

The title to property, service upon parties, including minor defendants, the procedure relating to the opening up of judgments, and the protection guaranteed to innocent purchasers during or after litigation, are matters entirely within the legislative control. It is evident that in this case the infant attempts to avail herself of the privileges of Section 11631, General Code, and at the same time to ignore that provision of the code which protects the rights of a bona fide purchaser for value in case the former judgment is vacated. She cannot claim the advantages and ignore the disadvantages accruing .under these various sections.

While Section 11631, General Code, may have conferred the right to open up the judgment, it was limited by Section 11633, General Code, which protected the rights of bona fide purchasers acquired in consequence of that judgment.

In Moor v. Parsons, 98 Ohio St., 233, a defendant sought to avail-himself of the remedy provided by Section 11632, General Code, which permitted one served by publication only to have a judgment opened up after the term, within five years after the date of the judgment. This court held, however, that that section was limited by the section following, which guaranteed protection to the title of innocent purchasers, and the language of Matthias, J., is applicable here. He said, at page 242: “Undoubtedly the right was conferred upon him by that section to proceed as he did in this ease, but the right there conferred carried with it the limitation imposed by the succeeding section, that the title to property which by reason of the judgment had passed to bona fide purchasers should not.be disturbed.”

It is, therefore, difficult to see why, if under Section 11632 a party served by publication cannot open up a judgment so as to affect bona fide purchasers, the preceding section would permit a defendant, though an infant, to open up a judgment in face of the innocent-purchaser statute above quoted.

Section 11631, General Code, would not permit a party, though an infant, to open up a judgment in defiance of Section 11633, General Code, which explicitly provides that title of innocent purchasers “shall not be affected” by proceedings under Section 11631 or 11632, General Code.

The title to this property was subject to the judgment in the will-contest case. When the will was set aside the title of the devisees under the will no longer obtained, but the title descended to the heir at law who was a predecessor in title to Kellough, the defendant in error. The common pleas court was of the opinion that this section applied only to “title to property sold at judicial sale,” and that “it was not in consequence of this judgment that this property passed to the plaintiff as a purchaser in good faith.” The predecessor in title, the son of the testator, acquired title to this property because of the proceedings whereby the will was set aside. The title therefore remained in him and it was “in consequence of this judgment” made in the will-contest proceeding that the innocent purchaser acquired the title under which he now claims. In the will-contest case, decided in 1909, the common pleas court had jurisdiction of the subject-matter and of the parties, including this defendant. Its judgment was not void, but voidable only. Johnson, Gdn., v. Pomeroy, 31 Ohio St., 247.

However, it is urged that the will-contest suit instituted and terminated in the year 1909 was a lis pendens, and continued as such until such time as the infant would avail itself of the right to open up its judgment, and that the cause continued to be lis pendens until after the majority of the infant. But was it a suit pendente lite in the meantime? The suit had terminated with a verdict and judgment in favor of the contestor. The infant defendant might or might not avail itself of its statutory right to open up that judgment, but whether it did or not, at least until such proceeding should have been taken, undoubtedly the purchaser in good faith could rely upon the state of the record when he made this purchase. If he had recourse to the record he would have found nothing impairing the validity of the judgment, for the infant had not only been made a party, and been served, as stated, but a guardian ad litem had been appointed by the court in the contest suit. The contention urged, however, is squarely opposed to the basic purpose found in Section 11633, General Code, which, if the judgment be not wholly void, specifically protects a purchaser in good faith against proceedings under the preceding sections, one of which confers the right upon an infant to procure the vacation of a judgment. This in itself shows that future proceedings to open up judgments do not constitute lis pendens against a bona fide purchaser who has bought in the meantime. However, we are not without authority upon this question. In the case of Lessee of Taylor v. Boyd, 3 Ohio, 338, it was attempted to deny the right of a bona fide purchaser upon the theory that the original case was pendente lite until reversal, and it was argued that “the writ of error was sued out, and bond given upon it, before the making of the conveyance, and that consequently the suit was pending.” In the per curiam it was stated, page 354: “We are of opinion that, until the service of the citation, a writ of error is not to be considered as pending so as to affect strangers as a lis pendens. This, we think, is not only in accordance with good sense and fair dealing, but is also according to the best authority.”

The case of Heirs of Ludlow v. Kidd’s Exrs., 3 Ohio, 541, is still more in point upon the phase whether or not the original Avill-contest suit became lis pendens until after the infant became of age. On page 544 of that report Sherman, J., said: “The argument for complainants is, that the statute giving the infants a day after they became of age, to file a bill of review, is to be taken as part of the decree itself, and considered as if the privilege was contained on its face; and that the legal effect thereof is, that it remains a matter pendente lite, until the rights reserved by the decree are extinguished.” In that case the claim Us pendens arose from the dismissal of a bill in the original suit. The court, after reverting to the fact that the case was no longer under the control or direction of the court, said, at page 549: “The circumstance that the decree was against infants, who have a right, by statute, to have that decree re-examined after they attain their age, nor the fact that the decree is afterward reversed, upon a bill of review, will not have the effect of continuing the original suit, so as to overreach intermediate purchasers.”

These decisions, as well as the evident purpose of the statute itself, disclose the fact that there can be no claim of lis pendens under proceedings to vacate a former judgment which can affect the title of a bona fide purchaser acquired in the meantime.

Manfull v. Graham, 55 Neb., 645, is especially in point, since it was decided upon remedial statutes similar to Sections 11603, 11631 and 11633, of our Ohio Code. That case supports the conclusion herein announced, that, under such statutes, in a case of this character, the title of innocent purchasers is not subject to defeat by the subsequent vacation of a judgment by an infant.

The proceeding under the Torrens Law (Section 8572-1 et seq., General Code) was a proceeding in rem. It is so designated in the act itself. It is no necessary at this time to revert to the requirements of the various sections of that act necessary to obtain a registry of the title of an applicant made thereunder. It is sufficient to say here that the law permits various defendants, including infants, to be parties to the proceeding, and permits the appointment of a guardian ad litem by the court for the protection of the infant’s rights. The court of appeals having found Kellough’s title to be that of an innocent purchaser, it must prevail over a later remedy the infant had, if any, to open the judgment in the will-contest suit. The court of appeals, therefore, did not err in registering the title in the defendant in error Kellough, subject to the payment of the mortgages thereon. The judgment of the court of appeals is affirmed.

Judgment affirméd.

Marshall, C. J., Johnson, Hough, Wanascakeb, Robinson and Matthias, JJ., concur.  