50 Mo. 438 | Mo. | 1872
delivered the opinion of the court.
This was a motion made by all the parties to a partition suit, to set aside the sale of the land and for a new order of sale. The facts, as they appear from the bill of exceptions, are that the land consisted of eighty acres, worth in cash $20 per acre, or $1,600 ; that-on the day of sale one of the adult parties in interest had employed an agent to attend the sale to see that the land was not sacrificed; that this agent was detained by accident and did not reach the place till after the sale, and that appellant Jones bought the eighty-acre tract at the sum of
. In looking into this record I discover an irregularity which has not been noticed by either party, which may have caused this great inadequacy of price. The record presents the anomaly of two infant plaintiffs suing by next friend for partition and sale of the land. This next friend was appointed by the clerk in vacation, as though it was an ordinary suit by infants. The partition law governs the case. That law authorizes the guardian^ if there be any, to bring such suit; and if there be no regular guardian, then the court, in term time in which such suit is to be brought, may appoint a guardian, who shall have all the authority of a regular guardian in such cases. But I know of no statute or other lawwhich authorizes a next friend to bring such suit.
The question, therefore, is, what ought to be done in this case? The court committed no error in setting aside the sale, and therefore its judgment as to that must be affirmed at the cost of the appellant Jones. But the judgment of partition must be reversed and the cause remanded, with directions to the court to dismiss the petition or permit the parties to have a guardian appointed by the court, and by such guardian to file an amended petition for partition, and proceed anew with the case.