73 W. Va. 336 | W. Va. | 1913
This suit for partition of three tracts of land containing in the aggregate about 700 acres, by an infant suing by her next friend, involves and grows out of proceedings in two former suits, and proceeds upon the theory of lack of jurisdiction in the court, to pronounce certain decrees in the last one of the two prior causes. It is the exercise of the right of the plaintiff, as an infant, to show cause against the decree in that suit. Treating the decrees therein as void, the circuit court granted the relief prayed for in the bill, and the purchas
The land was sold as the property of G. A. Parley, at the instance of creditors in a suit commenced May 19, 1888, and J. E. Peek became the purchaser, paid the purchase money and obtained the right to a deed for the land which was never executed. Afterwards, on June 29, 1891, Parley, the former owner and debtor, repurchased from Peck part or all of the land for $1,350.00, of which $500.00 was paid and for the residue of which he executed his three notes, and took from Peek a title bond. . In the next year, Parley died' without having paid the balance of the purchase money, and left surviving him his wife, Alice Parley, and three, children, 'William, Plora and Mary. Then on January 6, 1893, Peck instituted a chancery suit to compel specific performance of the contract, evidenced by the title bond and purchase money notes, making Alice Parley, the administratrix of the estate of G. A. Parley, Alice Parley, his widow, in her own right, Plora Parley, William Parley and Alice Parley, parties to the bill, describing the last three as infants. One of these infants was improperly named. She was proceeded against as Alice Parley and her name was Mary Parley. A guardian ad litem was appointed for the infants and filed an answer for them. There was a decree of sale and Peck again became the purchaser for $850.00. The sale was confirmed, the purchase money applied on the costs and debt and a commissioner was directed to execute a deed, but never executed it.
The bill proceeds upon the assumption that the plaintiff was not a party to the suit instituted by Peck and that her half-sister, Annie Parley, was also omitted, in consequence whereof certain interests in the land, her own and her half-sister’s, were not within jurisdiction of the court nor sold. The bill alleges the half-sister, Annie Parley, died ■ sometime after Peck became the purchaser and the plaintiff and her brother and sister inherited her part of the land, so that at the time of the institution of this suit Peck was the equitable owner of one-half of the land and the plaintiff and her brother and sister held the legal title to all of it and the equitable title to the other one-half. The bill exhibited the proceedings- in the prior suit instituted by Peck. It was answered by him and
As the bill alleges failure to make Annie Parley, one of the heirs, a party to the suit, and her subsequent death, in consequence of which the plaintiff and her brother and sister inherited her interest in the land, the demurrer to the bill was properly overruled. But for this allegation, it may be possible the demurrer could have been properly sustained, inasmuch as the record exhibited with the bill might be sufficient to show the plaintiff herself had been made a party by a wrong name.
In fact, Annie Parley died before the death of her fath’ér, and all of the interested parties were before the court in the suit brought by Peck, but one of them was there by a wrong name. There were but three children and three were made parties as infant defendants. The process was personally served upon all of them and a guardian ad litem put in their answers. Obviously, therefore, there was a mere misnomer as to Mary Parley, the plaintiff in this suit. Failure to discover this and correct it by an amendment was a technical error, but there was no want of jurisdiction. Although sued by a wrong name, she was before the court and an answer was put in for her by her guardian ad litem. Chapman v. Branch, recently decided and not yet reported. A technical error, such as this, however, does not justify the setting aside of the
As matter of further impeachment of the decree of sale, it is alleged that Alice Parley, the widow of G-. A. Parley, was an infant at the date of her appointment as administratrix and therefore ineligible at the date of her appointment and that she was under the disability of infancy at the time of the institution of the suit, January 6, 1893. The only proof offered is the record upon which her marriage license was issued, showing she was 16 years old in 1888. She must have become 21 sometime in the year 1893, but whether before or after the 6th day of January of that year, the date of the institution of the suit, it is impossible to say from the evidence. Though an infant is ineligible to appointment as a personal representative and cannot be empowered to enter into contracts as personal representative or otherwise, by an unauthorized appointment, the appointment itself cannot be collaterally
An infant administrator cannot be held liable for a devas-tavit committed by him, nor be required to account, while under the disability of infancy. Saum v. Coffelt, 79 Va. 510; Allen v. Minor, 2 Call. 70; Hindmarsh v. Southgate, 3 Russell 324; Tyler on Inf. & Cov., sec. 7 p. 41. This results from the incapacity of an infant to bind himself by contract except in particular cases, and his unauthorized appointment is not deemed to have enlarged his contractual powers. But it does not follow that all of his acts are void. He is nevertheless a de facto administrator and many of his acts are valid and binding. Railway Co. v. McWhorter, 59 Kan. 345; Davis v. Miller, 106 Ala. 154; Succession of Lyne, 12 La. An. 155; State ex rel v. Rucker, 59 Mo. 17; State v. Smith, 71 Mo. 75. In all these cases, it was held that a minor improperly appointed administrator may sue and the appointment is not open to collateral attack. In other words, the appointment is deemed valid for the purposes of the action. The incapacity of the infant to contract is not involved here. The purpose of making her a party defendant to the bill in the suit instituted by Peck was to enable her to show the indebtedness had been paid or to apply upon it any personal estate in her hands as ad-ministratrix. The creditor in that suit was.not bound to require an accounting of her and, if she had misappropriated or wasted the personal assets and could not be made to account for them, that fact did not bar the right of Peek to resort to the land for payment of the purchase money due him, and, as she was administratrix in point of fact, he could treat her as such for the purposes of his suit.
It results from these principles and conclusions that the
The legal title seems to be outstanding in the heirs of Parley, but Peek has not asked any affirmative relief in his answer. He does not pray for a decree requiring them to convey the legal title to him, nor are all the parties necessary to such relief before the court. The husband of Plora Dingess was not made a party nor was the wife of William Parley. The omission of the latter may not be important, but Plora Dingess cannot execute a deed alone. Her husband must join in it.
Por the reasons stated, the decree complained of will be reversed and the bill dismissed.
Reversed, and Bill Dismissed.