Abdil v. Abdil

26 Ind. 287 | Ind. | 1866

Elliott, J.

Irad Abdil, the appellee, filed a complaint against Emily E. Abdil, the appellant, Hiram Abdil, the father of Emily E., and Fielding Lacy, alleging, among other things, that Lacy had conveyed certain real estate to Emily L. Abdil, the mother of Emily E., and then the wife of Hiram Abdil-, that said Emily L. had executed to Lacy her notes for the purchase money, which she secured by a mortgage-on the same real estate, executed by herself alone, said Hiram, her husband, not having joined therein; that said notes and mortgage were subsequently assigned to the plaintiff, Irad Abdil, to secure a debt due him from said Hiram; that he subsequently obtained a decree of foreclosure of the mortgage, on which the real estate was sold and he became the purchaser, but that the mortgage and sale were void, because said Hiram, the husband', did not joih with his wife, Emily L., in the execution of the same; that said Emily L. subsequently died, leaving said Hiram, her husband, and the said Emily E., the appellant, who was an infant, her only child and heir at law. The complaint further alleges that-said Hiram Abdil, at the time'of said transactions, was largely indebted to divers persons, among others to the plaintiff; that he was in fact the purchaser of said real estate and had paid a part of the purchase money, not included in the mortgage, and that said Emily E. had paid no part thereof, but that said Hiram caused the deed to be made to her for the purpose of cheating and defrauding his creditors. The complaint prayed that a commissioner be appointed to convey the property to the plaintiff’, and for general relief. The court, on the final hearing, appointed a commissioner to execute to the plaintiff’ a deed of conveyance to said real estate. The deed was executed, reported to the court and approved. Emily E. Abdil appeals. The record before us does not show that any process 'was ever issued or served in the case. A default was taken against the defendants Hiram Abdil and Fielding Lacy, and the record then proceeds thus: “And this' cause is now set down for hearing by the court on the complaint, exhibits, answer of guardian ad litem and oral proofs, and the court, after hearing the testimony,” &c. It does not appear, however, that any notice or process was issued or served on Emily E., nor that any guardian ad litem was appointed by the court to appear or answer for her, and though it is incidentally stated that the cause was set down for hearing on the answer of the guardian ad litem, &c., no such answer appears in the record, nor does it appear that such an answer was ever filed.

The proceedings were erroneous and cannot be sustained. In suits against infants process must be served upon them in the same manner as if they were adults. Hough v. Canby, 8 Blackf., 301; Babbitt v. Doe, 4 Ind. 355; Doe v. Anderson, 5 id. 33; Martin v. Starr, 7 id. 224. The court must appoint a guardian ad litem to appear for infant defendants, and a decree against an infant without such appointment is erroneous. Timmons v. Timmons, 6 Ind. 8. Nor can the guardian ad litem waive the service of process on the infant. Hough v. Canby, 8 Blackf. 301; Robbins v. Robbins, 2 Ind. 74. And on error it must affirmatively appear that process was duly served on the infant and a guardian acl litem appointed to appear and answer, or the proceedings will be reversed. Martin v. Starr, 7 Ind. 224. In the cases to which we are referred by appellee’s counsel, the proceedings were attacked collaterally; they are not in point here.

Z. Baird, for appellant. T. F. Davidson, for appellee.

We may further remark that we find nothing in the complaint justifying the decree of the court vesting the title of the real estate in the plaintiff’, and appointing a commissioner to execute to him a deed. If the conveyance was made to Fmily L. Abdil to defraud the creditors of Hiram, as alleged, the property might perhaps be made subject to sale by the creditors for the payment of his debts, but a sale upon avoid mortgage, executed by the wife alone, cannot be sustained on the ground that her husband was indebted to the plaintiff.

The decree is reversed, with costs, and all the proceedings subsequent to the complaint are set aside, as to the appellant, and the cause is remanded for further proceedings.