Mitchell v. JonesMitchell v. Jones
delivered the opinion of the court.
This was a motion made by all the parties to a partition suit, to set aside the salе of the land and for a new order of sаle. The facts, as they appeаr 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 pаrties in interest had employed an agеnt to attend the sale to see that the land was not sacrificed; that this agent wаs detained by accident and did not reаch the place till after the sale, and that appellant Jones bought the eighty-acre tract at the sum of
. In lоoking into this record I discover an irregularity which has not been noticed by either рarty, 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 сase. That law authorizes the guardian^ if thеre be any, to bring such suit; and if there be no rеgular guardian, then the court, in term time in which suсh 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 stаtute or other lawwhich authorizes a next friend to bring such suit.
The question, therefore, is, what ought to be done in this case? The cоurt committed no error in setting aside the sale, and therefore its judgment as to that must bе affirmed at the cost of the appellant Jones. But the judgment of partition must be reversed and the cause remandеd, with directions to the court to dismiss the pеtition or permit the parties to havе a guardian appointed by the cоurt, and by such guardian to file an amended petition for partition, and proceed anew with the case.