Eubanks v. McLeod

63 So. 226 | Miss. | 1913

Smith, O. J.,

delivered the opinion of the court.

This is a suit in ejectment, instituted in the court below by appellant to recover of appellees possession of certain land. One Joel Dickinson died several years since intestate, leaving as his heirs a widow and several children. Some time after his death one of these children, Sarah McLeod, filed her bill in the chancery court of G-reene county against the widow and other children of Joel Dickinson, deceased, alleging that during his lifetime her father had made her a verbal gift of the land here in controversy, and praying that her title thereto, which she alleged had become perfect by adverse possession, be confirmed. Four of the defendants to this bill were minors. This fact does not appear from the bill, however, and the summons seems to have been executed upon all of the defendants as if they were adults; the return of the sheriff being in the following language: “Executed the within process by handling a true copy of the same to the within-named defendants, this the 24th day of July, 1896. J. E. Millee, Sheriff, by O. L. Eu-banks, D. S.”

On the 14th day of September following the services of this process, defendants, by attorney, filed an answer to this bill, denying the complainant’s right to relief, and made their answer a cross-bill, alleging that they, together with complainant and cross-defendant, Sarah McLeod, were the joint owners of the land, that it was incapable of division in kind, and praying that it be sold for partition. This answer and cross-bill contained no allegation of the minority of the minor defendants, nor were they represented by guardian ad litem or next friend. To this cross-bill an answer was filed by complainant and cross-defendant; but afterwards she, together with the attorney for defendants and cross-complainants, entered into a written agreement that her bill of complaint should be dismissed, the cross-bill retained, and a decree thereon entered for the sale of the land and division of the proceeds thereof. Pursuant to this agreement a decree was entered on the 15th day of April, 1897, appointing a commissioner to sell the land and report at the next term of court. This he did, reporting a sale to L. H. Eubanks. This sale was confirmed by the court, and the commissioner directed to execute a deed to the purchaser, L. H. Eubanks, which he did on the 15th day of May, 1898. Afterwards Eubanks died intestate, leaving several heirs, who, on the 2d day of March, 1907, conveyed the land to appellant herein.

After introducing the foregoing facts in evidence, appellant rested her case, whereupon, on motion by appel-lees, all of her evidence was excluded by the court, and the jury peremptorily instructed to find for appellees. It is contended by appellees that the decree rendered in the partition snit is void for two reasons: (1) Because the summons was not executed upon the minor defendants in the manner provided by law; (2) because the “decree for the sale of the land in this case, in which there were four infant defendants, was not based upon any proof' to support the allegations of the cross-bill, but was based upon an agreement signed by an attorney for these minors, just as though they had been adult defendants, and wherein the attorney was not even acting as guardian ad litem, or as the next friend of the infant defendants.”

The question of the validity vel non of the service of the process upon the minor defendants does not arise upon this record, for the reason that the original bill upon which this process was issued was dismissed, and the decree rendered was in response to a cross-bill filed by both the adult and minor defendants, and which was retained and proceeded with as an original bill. It is true, in filing this cross-bill, the minor cross-complainants were not represented by a guardian ad litem or next friend; but their not being so represented was a mere irregularity, did not deprive the court of jurisdiction to proceed in the matter, and its decree cannot on that ground be attacked collaterally. 10 Ency. Plead. & Prac. 596. This is a necessary implication from Gully v. Dunlap, 24 Miss. 410, wherein it was held that the infancy of the plaintiff, who had sued in his name, instead of by next friend, could be availed of only by a plea in abatement.

It was unnecessary to introduce any evidence in support of the allegations of the cross-bill, since the defendant thereto, an adult, had agreed that the relief prayed for might be granted without the introduction of evidence. This agreement placed the cause in the same situaron that it would have been, had the allegations of this' cross-bill been admitted by a formal answer. ’ '

Appellees also contend that they have, ConcedinsAfhe commissioner’s deed to L. H. E<ubanks to be valid; ob-lamed title to the land in controversy by adverse possession. It does appear from the cross-examination of some of .appellant’s witnesses that appellees have been in continuous possession of this land since the execution of the ^commissioner’s deed; but it does not appear that their [possession was under claim of ownership. On the contrary, they seem to have been in possession, at least for ;a, .part of the time, under a lease from L. H. Eubanks.

Reversed and remanded.