63 So. 275 | Miss. | 1913
delivered the opinion of the court.
This action was begun by a bill filed in the chancery ■eourt of Leake county by appellant, praying that a certain deed executed by him during his minority be canceled. It seems that there was an attempt to remove appellant’s disabilities of minority by the chancery court prior to the date of his signing the deed he now seeks to have canceled.
After charging that his parents exercised an undue influence in obtaining his signature to the deed, the bill makes the proceedings and decree of the court purporting to remove the minor’s disabilities a part of his bill,
The petition upon which the court’s action was based, begins thus: “Your petitioner, N. Clinton Jackson, a minor, for himself, and by' his nest of kin, to wit, his mother, Adaline Jackson, and his father, S. J. Jackson, show your honor as follows,” etc. No process was asked for all of the next of kin within the third degree, and none was issued; and the next of kin within the third degree did not enter an appearance to the suit. This proceeding is not an ordinary proceeding in equity, but is addressed to the chancery court because of its guardianship of minors,- and the statutes point the way to be traveled in reaching the court.
Section 543 of the Code of 1906 confers upon the chancery court of the county of the minor’s residence jurisdiction to remove his disability of minority. Section 544 provides: “The application therefor shall be made in writing by the minor by his next friend.” It will be observed in this case that the minor did not petition by his next friend, but the petition was filed by the minor himself and by his mother and father. It follows that the plan of procedure prescribed by section 544 was not observed. It is contended, however, that the spirit and purpose of the statute are satisfied by the joinder of the mother and father as petitioners; they being the persons primarily interested in the welfare of their son and are so treated by the statute.
By the same section the lawmakers recognize that the interests of the minor may not safely be left solely to-the discretion of his parents, and even when the petition is strictly followed any relative or friend of the minor may appear and resist the application. Besides, the section in question expressly provides that the minor must have a next friend to stand by and represent him, no matter what may be the views or desires of his parents and
Neither can we reach the conclusion that section 545 changes the situation, because this section provides that in an ex parte proceeding (which this probably was) all the kindred within the third degree must be made parties to or join in the application. Besides, it seems that the statutory scheme contemplates that the minor must in all events proceed by next friend. To say that the statutory scheme was substantially complied with is to invade the realm of conjecture and to ignore the plain and unambiguous language of the statutes.
It seems best to leave'this matter with the legislature, and for the courts to follow the paths marked out by the law, however unimportant the details may seem to us. To single out individual infants to emancipate imposes upon the chancery court grave responsibilities, and when the court is called upon to exercise the power it should see to it that the minor’s interests are safeguarded in every way the law prescribes. The action of the chancellor in sustaining the demurrer to the bill is disapproved.
Reversed and remanded.