72 S.E. 149 | S.C. | 1911
October 2, 1911. The opinion of the Court was delivered by The main question involved in this action for partition is whether the Circuit Court ruled correctly in holding that the plaintiffs were bound by a former judgment and sale of the land in pursuance thereof, under which the defendants, who are respondents in the appeal, claim.
The alleged fatal objection to the validity of the former judgment and to its admission in evidence was that there was not found in the record the requisite proof of service on some of the plaintiffs who were then infants. The record did not contain the affidavit or official certificate required by law, but it does contain petitions duly signed for the appointment of guardians ad litem for the infants, reciting the service on the infants, the answer of the guardians ad litem on behalf of the infants, and the judgment of the Court of Common Pleas directing a sale of the land, dated September 23, 1880.
"All presumptions must be indulged in favor of the jurisdiction of a Court of general jurisdiction. To avoid such a judgment for want of jurisdiction the jurisdictional defects must appear affirmatively on the record." Ex parte Gray,
In such case the judgment is not void on its face, and the only remedy of a party claiming not to have been served is by a direct proceeding to have the judgment set aside. The rule on the subject is thus well stated by Mr. Justice Jones in Clark v. Neves,
The other point made by the appeal involves the construction of the following devise in the will of Jessie Wirick: "I give, devise, and bequeath to Simon Mobley and his children, Shadrack Countee and his children, Hilliard Countee and his children, forever, the balance of the Alston or Martin tract and what is known as the Adam Wirick Piney Woods tract and the Taylor tract." Contrary to the contention of appellants the law is settled that the persons named and their children living at the death of the testator took the land to the exclusion of their children born after the death of the testator. Meyer v.Meyer, 2 McCord Chancery 213; Robinson v. Harris,
It is the judgment of this Court that the judgment of the Circuit Court be affirmed. *511