Price v. Crone
44 Miss. 571
Miss.
1870
Check Treatment
Simball, J.:

A bill was brought in the chancery court of Adams county, by Frederick Orone against Ellen Price, administratrix of John Price, deceased, to foreclose a mortgage executed by her intestate, to Schwartz & Orone (Schwartz having assigned his interest in the debt and mortgage to Orone). Subsequently the bill was amended, making Emma Prances Price, a minor, said to be the daughter and heir of John Price, party defendant. Ellen Price, the administratrix, failed to appear and make defense, and the bill was taken for confessed by her. H. Polkinghorn was appointed guardian ad litem, for the infant, Emma Prances, who put in for her the formal answer, submitting her rights and interests to the protection of the court. The mortgage was an undivided moiety of a town lot and premises in the city of Natchez. Subsequent to the date of the mortgage, the premises were divided between the joint owners. But the bill furnishes no other description of the moiety assigned to the mortgagor by the partition, than a reference to papers on file, and of record in the probate clerk’s office. On final hearing, a decree of foreclosure was made.

It is the duty of the chancellor to protect the rights oí minors, whether the proper defense has been made or not. The pro forma answer of the guardian ad “ submits the interest of the infant to the care and protection of the court.” Nothing is taken for confessed or waived by the minor or her guardian. The court must look to the record *576and all its parts, to see that a case is made which will warrant a decree to bind and conclude her interest, and of its own motion-, give to the minor the benefit of all objections and exceptions, as fully as if specially -made in pleading. The purpose of the bill was to subject the land descended to this infant, to the mortgage of her ancestor. There being no power in the infant to waive anything, a valid decree could not be made against her, unless there has been a substantial compliance with the requirements of the law, in the essential matters.

It is a settled rule in a court of equity, that a guardian cod litem can not be designated, until the infant has been served with process. She must be brought before the court, before the authority arises, to deal in any manner with her rights. After this is done, a fit person is nominated to represent her pro hae vice- But there was no legal service of process in this case on the minor. “ Execution of the subpoena on Emma Frances Price, and delivering her a true copy,” does not comply with either the letter or spirit of the statute. Rev. Code, 487, art. 64. “ Process shall be served on the infant personally, and on his or her father or mother, if he or she have any in this state.” In Ingersoll v. Ingersoll, 42 Miss., 162, it was held, that in order to the validity of the service, it must be shown by the return of the officer that «there was neither father, nor mother, nor guardian.” Art. 52 of the chancery court law, Code 548, allows the appointment of a guardian, oh the application of the infant, before the service of the process. The right to appoint before service, can only be made on such application. The appointment of Polkinghorn was not made on the application of the infant, and its rightfulness falls within the general principles of the practice of the court. The court did not acquire jurisdiction over the infant heir, by reason of the insufficient service of the process. The probability is great, if it does not distinctly appear in the record, that Ellen Price, the widow of the intestate, is the mother of the infant, and it does appear that she was resident in Adams county. We *577suppose that the 52d article, p. 548, giving to the infant the selection of the special guardian, to be in analogy to the probate court law which allowed such choice by infants over fourteen years of age. Under the English practice, the infant, subject to the approval of the court, could make a selection, (11 Vesey, jr.,) and if convenient, was brought into court. The process should be served on the infant, (Carrington v. Brantz, 1 McLain 174), and guardian appointed by the court, or it will be error, ibid; Walker v. Hallett, 1 Ala., 289.

The infant is entitled to every benefit which can be taken to the bill, although" no exceptions are expressly taken. His answer cannot be excepted to for insufficiency, nor can any admission made by him be binding. Story’s Eq. Pl., § 871; Mitford (by Tenny), 313, 315. The rights of an infant will not be permitted by the court to be prejudiced by any omission of the guardian ad litem. Stephens v. Van Buren, 1 Paige, 479. In Grantshim v. Craigmiles, 1 Bibb, 203, the court applied for -the benefit of the infant, the statute against frauds and perjuries, to a bill for the specific performance of a parol contract for land, although the statute was not insisted upon by the guardian.

It is insisted, that the other co-tenant with Price, the mortgagor, is a necessary party defendant. The objection is made on the premises, that a partition would not be made, by the tenants in common, after Price had mortgaged his undivided moiety. The general rule is that partition can only be made between those in the actual or constructive possession. Jenkins v. Van Shecnk, 3 Paige, 242 ; Clapp v. Bromagham, 9 Cowen, 530; O’Doherty v. Aldritch, 5 Denio 320. Other claimants must establish their right by suit, and obtain actual seizure, before they are in condition to demand a partition. The mortgagor in possession, therefore, is the proper party to divide the premises’ with his co-tenant, and when the partition has been made the mortgagor- attaches to his moiety in severalty. 1 Washburn on Real Prop., 584 Call v. Barber, 12 Maine, 320.

*578The statute of limitations barring a foreclosure, is also relied upon. Rev, Code, 399, art, 4, § 1, limits the suit in equity, to the period of time allowed by law, for the recovery of the debt “ specified! in the writing,” and when the remedy at law, to recover the debt is barred, so is the- mortgage,. Until this positive- provision of law, the chancery court had;, in analogy to the limitation at law of the right of entry, adopted the bar which defeated the ejectment to recover the possession. The 3d section of the act of March 1st, 1854, enlarged the time of seven years given by the act of 1844, for the bringing of a promissory action for the recovery of lands to ten years. So that under this statute, the mortgagee woukl have ten years within which to bring his bill for foreclosure. This act took'effect on the 4th May, 1854. It was held in Caruthers v. Hurley, 41 Miss., 73, that the limitations of time, and other provisions of the statute of limitations of 1844, when they were operating upon causes of action, accrued before the modification by the Code of 1857, still continued to apply and govern, except that a bar which has been passed under the latter act may be pleaded. If the time appointed by the prior statutes, will work a bar before a shorter time introduced’by the latter, then the former statute applies. In making this comparison, the time must be computed from the date of the passage of the latter law. Such was the rule recognized in Buckingham v. Riggs et al. 26 Miss., 758. It is entirely competent for the legislature to either shorten or lengthen the period of limitation; such legislation affects the remedy and not the rig'ht, and only becomes obnoxious to constitutional objection, when it defeats all remedy, and such limitations may affect existing causes of action. Briscoe v. Ankeste’ll, 28 Miss., 371. Computing the time under the act of 1854, the ten years would begin to run from the maturity of the note in April, 1854, at which time the condition of the mortgage would he broken, or applying the six years, as provided by the Revised Code, and deducting the time of the suspension of the statutes of *579limitations, it is manifest that this suit was not barred.

The decree is reversed, and the cause remanded for further proceedings in accordance with this opinion.