67 So. 1004 | Ala. | 1915
Appellants sued appellee in ejectment to recover possession of 60 acres of land. The trial court on the whole evidence directed a verdict for defendant, which resulted in a judgment for defendant, from which plaintiffs prosecute this appeal.
The reporter will set out the petition of the guardian for the sale of the land.
The statutes of this state confer jurisdiction on the probate courts to sell lands of their wards for several purposes, to pay debts, for maintenance, for reinvestment, and probably others. The sale in this instance was under section 4411 of the Code, for reinvestment. This section reads as follows: “The court of probate may authorize the guardian to sell any property of the ward, and direct the investment of the proceeds in bonds, notes, or bills of exchange at interest on mortgage security, or in other property or securities, in the name of the ward.”
Section 4412 of the Code provides what the petition or application of the guardian shall contain, which is as follows: “To obtain such order of sale the guardian must make application in writing, verified by affidavit, describing the property sought to be sold, and stating the facts showing that the interest of the ward would be promoted by the proposed sale and reinvestment.”
A case very much like this and one that cannot be distinguished from it was that of Daughtry v. Thweatt, 105 Ala. 615, 16 South. 920, 53 Am. St. Rep. 116. In that case it was said: “The proposition is that he could not proceed to an order of sale without notice to the ward, and without the appointment of a guardian ad litem to represent her. The proceeding the statute authorizes has in it no element of an adversary suit in personam. All such proceedings under analogous statutes authorizing the court of probate, or the judge of the court of probate, to license or confer power on executors, or administrators, to make sales of lands, or of personal.property, since the case of Wyman v. Campbell, 6 Port. 219 [31 Am. Dec. 677], have been regarded as proceedings in rem and jurisdiction of the thing, and not of the person, as imparting validity to the proceeding when collaterally assailed.—1 Brick. Dig., 939, §§ 351, 352. The jurisdiction of the judge of probate must have attached, or there could not have been notice to, or the appointment of, a guardian ad litem for the ward. The one or the other would have been but movements, in the exercise of the jurisdiction, attaching on the filing of the
“We must not he understood as assenting to the proposition that notice to the ward, or the appointment of a guardian ad litem for her, was essential to the regularity of the proceeding. The statute makes no such requirement, and for the obvious reason, as we have said, that an adversary proceeding in personam is not contemplated. The application for the sale made by the guardian in her representative capacity, not in any individual right, would seem to he but the application of the ward, speaking and acting through her legal representative. Notice to the ward could only inform her of the pendency of her own proceeding, and warn her of a decree or order sought to meet her necessities or in terests.—Mohr v. Manierre, 101 U. S. 417 [25 L. Ed. 1052]. A guardian ad litem could have no duty or office to perform which the law had not devolved on the general guardian. Whenever a guardian ad litem is deemed necessary for the representation of the ward in the court of probate, the statutes provide expressly for his appointment, In the proceeding for the sale of lands under the statute to which we have referred, there is no authority for, or the requirement of, such an appointment. This question the necessities of the case do not require us to decide, and we prefer to rest our conclusions on the settled doctrine, which has so long prevailed in this state, touching the character and validity of sales made under the orders or decrees of the court of probate.”