| Miss. | Oct 15, 1880
delivered the opinion of the court.
The defendant held the land by successive conveyances under Joseph T. Goode, who in 1867 had obtained a decree of the Chancery Court of Yalobusha County appointing a commissioner to convey to him all the title and interest of the widow and children of S. B. McLemore, deceased, and had received such conveyance by the commissioner in pursuance of the •decree. The plaintiffs claimed to recover the land as the widow and heirs of S. B. McLemore, and sought to defeat the foundation of the claim of the defendant, which was the decree mentioned, by evidence of a bill exhibited by them in the •court in which said decree was rendered, to vacate and annul it, and a decree obtained in September, 1879, to vacate ajid
The bill of Goode, which resulted in a decree in 1867, as stated above, was exhibited against W. H. Burford, and the widow and child of one Trapp, and the widow and children of S. B. McLemore, deceased, and the children of one Carr, deceased. In 1879 the widow and children of S. B. McLemore exhibited their bill in the Chancery Court of Yalobusha County, in Avhich the Avidotv and three of the children are described as adults, and four of the children arc described as minors, and by Avhich the material averments of Goode’s bill are negatived ;.and it is averred that at the time of the decree in Goode;s favor all of the said children of McLemore Avere minors, and that they had no sufficient notice of the suit, and they prayed process against Goode, the complainant in the first suit, and the Avidow and child of Trapp, and the children of Carr, deceased, and for a decree “ reviewing, reversing, and cancelling the final decree and commissioner’s deed ” obtained by Goode in his suit. On the 25th of September, 1879, a decree ivas rendered in accordance with this prayer. The deed of the commissioner under the decree to Goode was made in 1867, and a few days thereafter he conveyed the land to the Water Yalley Manufacturing Company, which had conveyed it in 1866 to the Mississippi Central Railroad Company, Avhich subsequently conveyed to the defendant in this action.
It is apparent from the foregoing narrative that the admissibility in evidence of the decree rendered in 1879, vacating the decree made in 1867, on which the title of the defendant rests, depends on the solution of the question whether or not said defendant, as the holder of the title to the land in the manner-stated, was concluded by the decree made in 1879, without having been made a party to the proceeding which resulted in that decree. The proper ansAver to this question involves a consideration of the nature and. effect of decrees “for the sale or coiiAreyance of the real estate of an infant” in those cases in Avhich, by art. 97, p. 555, of the Code of 1857, a saving
Decrees against infants, as to which the statute makes the saving mentioned, are subject to the contingency specified by the statute. They are liable to assailment by the infant at any time within three years after he attains the age of twenty-one years. The party interested in concluding the infant defendant at an earlier day may, within six months after he attains the age of twenty-one years, summon him to appear and show cause against the decree, or serve him with a copy ot it. If this is not done, the infant defendant has three years after his majority in which to show cause against the decree.
Until the decree is binding on the infant, it may be assailed by him and cause shown against it. The complainant, and all who hold the real estate under him, hold subject to the contingent character of the decree, and liable to have good cause to the contrary shown, by the infant defendant, according to the saving in his favor by the statute. Although the decree is final in form, and the sale or conveyance may be made as it directs, it is subject to the right reserved by law to the infant to show cause to the contrary.
It is clear, therefore, that an absolute title cannot be acquired under a decree for the sale or conveyance of the real estate of an infant, in those cases in which a saving is made in his favor, until such decree shall be binding on the infant, as shown above. The decree may be executed, and a sale or conveyance be made as directed, but the right of the infant to show to the court good cause to the contrary of the decree is secured by the statute, and all are bound to take notice of it and the character it impresses on the decrees to which it applies.
A more difficult- inquiry is presented by the effort to ascertain in what way the right of the infant defendant to show to the court cause to the contrary of the decree maybe exercised, and whether one who holds the real-estate under a sale or convej'ance made by virtue of a decree for its sale or conveyance
The statute cited was intended as a substitute for the rule in chancery courts to insert in decrees affecting the inheritance of infant defendants a saving in the following words, viz. : “And this decree is to be binding on the defendants unless, on being served with subpoena, they shall, within six months after they shall attain the age of twenty-one, show unto this court good cause to the contrary.”
Under such a decree the practice was to serve the late infant with a subpoena to show cause, and if he failed to appear or to show cause against the decree it ivas made absolute. If he appeared, he might defend and show the decree to be wrong.
When the infant defendant might come into court to impeach a decree against him, and how he might proceed, and exactly what his right and remedy were, seem not to have been very well settled in England at a comparatively recent date. The precedents on this subject are very few, and the learning afforded by reports and text-books is meagre, fragmentary, and by no means satisfactory.
In Kelsall v. Kelsall, 2 Myl. & K. 409, Lord Chancellor Brougham, after stating the question before him to be “ whether an infant defendant has a right, on attaining his majority, to make a new case by answer and evidence, after publication has passed and a decree has been made in the cause,” said: “This is a question of some importance, and certainly of rare occurrence,” etc. ; and he proceeded to discuss the proper limits of the right, which he declared to exist, and exhibited hesitation as to the proper practice in such cases. He declared his readiness to follow “ any trace of a precedent ” to obviate the injustice, as he called it, arising from permitting the late infant to mend his case. Long before this Lord Hardwicke had struggled with the difficulties of the question, and delivered one of his most elaborate judgments in Bennet
In Savage v. Carroll, 1 Ball & B. 548, the infant, before he attained his majority, was allowed to amend the answer filed in his behalf to the original bill, or to put in a new answer thereto, with liberty to both parties “to proceed on such amended or new answer, as they may be advised.” Lord Chancellor Brougham, in Kelsall v. Kelsall, said that the doctrine was carried in this case “ two steps further than the authorities in strictness warrant.”
In the same case (Savage v. Carroll) as reported in 2 Ball & B. *445, which was not adverted to by Lord Brougham in Kelsall v. Kelsall, it was declared that the infant, having been allowed to go into a new defence before he became twenty-one years of age, should not have a day to show cause against such decree as might be rendered in that proceeding, but in it should be considered as a plaintiff, and, as such, as much bound by the decree as if he were adult. And thus the doctrine was left by the cases in chancery in England and Ireland. See also 1 Dan. Ch. Pr. 165 et seq.
A summaiy of it is, that if the infant defendant is dissatisfied with the defence which has been made for him, and wishes to make a new one, he must, in general, wait till he has attained twenty-one before he applies ; but upon special circumstances shown he may obtain leave to make a new defence during his infancy, and in such case, in order to bind him by the decree to be made, he will be treated as a plaintiff and be
But it was the settled doctrine of the chancery courts that if the infant sought to impeach a decree on the ground of fraud, collusion, or error, he was not required to wait until he attained his majority, and might proceed by “ original bill, in which it will be enough for him to say the decree was obtained by fraud and collusion, or that no day was given him to show cause against it.” Richmond v. Tayleur, 1 P. Wms. 737 ; 1 Dan. Ch. Pr. (5t.h ed.) 164, and authorities cited in note; Sledge v. Boone, 57 Miss. 222" court="Miss." date_filed="1879-10-15" href="https://app.midpage.ai/document/sledge-v-boone-7985314?utm_source=webapp" opinion_id="7985314">57 Miss. 222 ; Enochs v. Harrelson, 57 Miss. 465" court="Miss." date_filed="1879-10-15" href="https://app.midpage.ai/document/enochs-v-harrelson-7985364?utm_source=webapp" opinion_id="7985364">57 Miss. 465. See also Smith v. Bradley, 6 Smed. & M. 485, as to what the right of the infant was.
Such were the rights of infant defendants in chancery, which review is presented as bearing on the question, what is their position under the statute ive are considering, for we have said that the statute is a substitute for the chancery rule.
Independent of the statute, it was the doctrine that the infant, desiring to impeach the decree for fraud, collusion, or error, might proceed by bill of review, or supplemental bill in the nature of a bill of review, or by original bill ; and in case of a decree nisi causa against an infant, on his coming of age and applying to the court for leave to put in a new answer, it was granted on his ex parte application, in the case of Fountain v. Caine, 1 P. Wms. 504. See also Napier v. Effingham, 2 P. Wms. 401. In 1 Daniell’s Chancery Practice, p. 174, it is said that the present practice is believed to be different, and that the motion or petition will be for leave to make a new defence ; but the text gives no information as to whether notice of such motion or petition is required to be given to anybody.
We are, like Lord Chancellor Brougham in Kelsall v. Kelsall, in quest of a “ trace of a precedent” for obviating the injustice which may arise from permitting a late infant to exercise his right under our statute to show cause to the contrary of a decree which has been carried into effect accord
Iu Pope v. Lemaster, 5 Litt. 77, a case strongly resembling that made by Goode’s bill and the bill of the widow and children to set aside the decree made in favor of Goode, the decree was executed by the conveyance of commissioners to the complainant in pursuance of the decree, and the purchaser from the grantee in that conveyance was made a party defendant to the proceeding to vacate the decree. The case is valuable as showing the nature of a decree against infants with a saving in their favor, and the principles on which the court will proceed in setting aside the decree when the late infant shows cause against it, and as illustrating the propriety of making the holder of title under the original decree a party to the proceeding to vacate it.
In Walker v. Page, 21 Gratt. 636, land of infants was sold in pursuance of a decree with respect to which there was a saving in favor of the infants, who, having attained majority, exhibited their bill to vacate the decree, and the purchaser under the decree was made defendant.
In Field v. Williamson, 4 Sandf. Ch. 613, it is said that the provision in a decree in favor of an infant’s right to show cause against it does not confer on him the right to assail the decree in any mode that he pleases, without regard to the course of practice pursued by adult defendants. “ He cannot show cause except in some regular proceeding adapted to the nature of the case, and iu order to institute such proceeding he must first obtain the leave and direction of the court. Not that the court, in a case of any doubt, would refuse leave, but that there is a sound judgment and discretion to be exercised in each instance, both as to the probable cause for granting-leave and the most expedient mode of effecting the object.”
In Ruby v. Strother, 11 Mo. 417" court="Mo." date_filed="1848-03-15" href="https://app.midpage.ai/document/ruby-v-strother-6612359?utm_source=webapp" opinion_id="6612359">11 Mo. 417, where a decree had been rendered against infants, who, on coming of age, instituted proceedings to set it aside, it was held that notice to the other
To this we agree, and we hold that when a decree has been made for the sale or conveyance of the real estate of an infant in those cases in which he has the right to show cause against the decree, and a sale or conveyance is made under it, and the infant proceeds to impeach it, he must make a party to his proceeding him who holds the real estate under the decree.
It is a primary rule as to parties , that one interested in the subject-matter and the object of the suit is a necessary party defendant.
The constant practice in this State is to sell or convey land decreed to be sold or conveyed, although the defendants, or some of them, are infants at the time of the decree. The execution of such decrees is not delayed until they become binding upon the infants, but they are usually proceeded with as in case of decrees against adults. More than twenty years may elapse, in some cases, before the decree is binding on the infant defendants. The real estate may have changed owners mauv times. The complainant in the decree for the sale or conveyance may have dismissed from his mind the existence of such decree, with the conveyance of the title he obtained under it. He may have been long “out of court” with respect to that case, and may have no interest in the question whether the decree for sale or conveyance shall be maintained or vacated. A third person may have purchased at a sale under such decree; the complainant may have received his money, and have no interest in the maintenance of the decree for sale.
It would be contraiy to the first principles of justice as judicially administered to permit a late infant to vacate the decree, which had been executed according to its terms, and which had thereby become the foundation of the claim of others to the real estate sold or conveyed, without summoning
In case of a bill of review, where property the subject of the decree has changed owners, the new owner is required to be made a party to the bill. 2 Dan. Ch. Pr. 1581 ; Story’s Eq. PL, sect. 420.
We dissent from the view that he who purchases under a decree for the sale of the real estate of an infant, where the statute makes a saviug in his favor, is a purchaser pendente lite, and bound by any decree rendered in a subsequent controversy between the original parties. After the decree for sale or conveyance, the suit is no longer pending. The decree is final in form and in effect, but subject to the right of the infant, after he attains to the age of twenty-oue years, to impeach it by a proceeding instituted by him for that purpose. If he shall not show cause to the contrary, it is binding; not because of a new decree to render the first absolute, but by virtue of the decree not having had cause to the contrary shown by him who had the right to do so, if he could. If the late infant does not act within the time given him to attack the decree, it stands unaffected by the fact of his infancy when it was made.
We think it is clear that the decree made on the bill of the widow and children of McLemore was not decisive of the rights of the defendant in this action, who was not made a party to that suit; that as to this defendant that decree is res inter alios
Judgment affirmed.