102 Va. 324 | Va. | 1904
delivered the opinion of the court.
D. C. Barraud, Senior, of the city of Norfolk, died in 1867, leaving a will, by which he gave to his grandson, D. 0. Barraud, Junior, a life estate in the “Barrons” farm in Norfolk county, with remainder to his lawful issue, if he should die leaving any, and if he should die without lawful issue then such remainder to pass, under the residuary clause of the will, to the persons there named. In addition to this specific bequest, the testator gave to this grandson an undivided interest in the estate passing under the residuary clause of his will.
Upon the death of the testator, the life tenant took possession of the “Barrons” farm. He rapidly exhausted his interests under the will of his grandfather, and soon had those interests, which were chiefly in lands, including his life estate in the “Barrons” farm, heavily encumbered by deeds of trust and judgments taken against him.
In 1874, D. 0. Barraud, Jr., and others, united as plaintiffs in a chancery suit against E. 0. Marshall and others, to subject his interests in his grandfather’s estate to the satisfaction of his debts. The object of this suit is stated in the bill filed as follows: “The object and intent of this bill is to construe the said will, to fix and determine the rights and interests of the various parties interested therein, to protect and provide for the annuities, and to make partition in kind of the said real estate so devised by the said D. 0. Barraud, deceased, to and among the parties entitled thereto, according to their respective shares and interests, so that the part or share of your orator, the said D. C. Barraud, therein, may he set apart in kind, if practicable, or so far as practicable, and sold for the benefit of the creditors under the said deeds of trust, and the judgment creditors aforesaid.” In May, 1875, a decree was entered in this cause, directing a sale of the entire fee in the “Barrons” farm (remainder as well as life estate). November 26, 1878, a consent decree
William H. Turner, the purchaser at the sale mentioned, died in 1885, and the present suit was instituted in February, 1901, by his son, Henry L. Turner in his own right and as next friend of two infant grandchildren of William H. Turner, against P. St. Geo. Barraud and his four brothers and sisters, the children of D. O. Barraud, Jr., seeking a decree quieting their title to a portion of the “Barrons” farm, claimed by them under the will of their ancestor.
This bill reviews the proceedings in the suit of “Barraud, &c., v. Marshall, &c." and alleges that under those proceedings William H. Turner, the ancestor of complainants, acquired a perfect fee simple title to the “Barrons” farm, and that they have, therefore, a fee simple title to that portion of the same involved in this suit; thatthe defendants deny their title, and claim that they own the “Barrons” farm under the will of their grandfather, D. C. Barraud, Senior, subject to the life estate therein of their father, D. C. Barraud, Jr., and insist that William H. Turner only acquired title in the suit of Barraud v. Marshall, to the life estate of their father. Complainants further allege that they desire to sell the land in question, and that the claim of defendants is a cloud upon their title, seriously impairing its value, which a court of equity will remove.
To this bill the five Barraud defendants, three adults and two infants by their guardian, ad litem, file answers. These answers deny the material allegations of the bill, and fully set out the case of the defendants, and exhibit as a part thereof the entire
This cause was regularly matured upon the original bill and the cross-bills, and, in September, 1902, the Circuit Court for BTorfolk county rendered the decree appealed from, holding among other things, that P. St. Geo. Barraud was never made a party defendant to the suit of Barraud v. Marshall; that no guardian ad litem was appointed for him; that no jurisdiction was ever acquired over him in that suit; and that all the decrees therein, so far as they purport to affect P. St. Geo. Barraud and those claimed to be represented by him, were null and void.
. It is apparent that the case now before us involves a collateral attack by the appellees upon the decrees in the suit of Barraud
of the judgments of superior courts of general jurisdiction only arise with respect to jurisdictional facts, concerning which the record is silent. Presumptions are only indulged to supply the absence of evidence or averments respecting the facts presumed. They have no place for consideration when the evidence is disclosed, or the averment is made. When, therefore, the record states the evidence, or makes an averment with reference to a jurisdictional fact, it will be understood to speak the truth on
While these salutary principles should not be lost sight of, it must also be remembered that no judicial proceeding can deprive a man of any part of his property without giving him an opportunity to be heard, and if judgment is rendered against him without such opportunity to be heard, it is absolutely void.
In the case of Underwood v. McVeigh, 23 Gratt. 409, Judge Christian says: “The authorities on this point are overwhelming, and the decisions of all the tribunals of every country where an enlightened jurisprudence prevails' are all one way. It lies at the very foundation of justice that every person who is to be affected by an adjudication should have the opportunity of being heard in defence, both in repelling the allegations of fact, and upon the matter of law; and no sentence of any court is entitled to the least respect in any other court, or elsewhere, when it has been pronounced ex parte, and without opportunity of defence.”
The only method known to our law for bringing an infant before a court is by guardian ad litem, who is appointed to con
In the interest of the infant, it is provided by statute that no “judgment or decree shall be stayed or reversed for the appearance of either party being under the age of twenty-one years, by attorney, if the verdict (when there i's one), or the judgment or decree, be for him, and not to his prejudice.” Y. O. (1873), ch. 177, sec. 3.
The question now to be determined is: Did the court, in the case of Barraud v. Marshall, obtain jurisdiction over the appellees or any of them by the appointment of a guardian ad litem?
At the time of the institution of that suit, the appellee, P. St. Geo. Barraud, was four years old, and was the only child of D. 0. Barraud then living. In 1878, when the sale of their interest in the “Barrons” farm was made to William H. Turner, the appellees, St. Julian Barraud and Myra Posa Barraud, were also in esse, the former being then three years old and the latter six months old. The two remaining appellees were born subsequently to the proceedings we are now considering. It is conceded that the appellees were not before the court by the “virtual representation” of their father, the life tenant. In the nature of things they could not be, as his interest was hostile to theirs, as shown by the bill. Bor is it contended that a guardian ad litem was ever appointed for any of these infants except P. St. Geo. Barraud. It is, however, insisted that he “virtually
The bill in the cause of Barraud v. Marshall, in its recital, states that P. St. Geo. Barraud is the only child of the complainant, D. 0. Barraud, and in its prayer asks that he be made a party defendant. The prayer of the bill also asks that Myra W. Barraud, an infant cousin of the appellees, and five infant Hanson children, be made parties defendant (these five last-named infants will, for brevity, he hereinafter referred to as the “Hanson children”), and asks that a guardian ad litem may be appointed to defend the infants named.
The first step taken in the cause of Barraud v. Marshall was the written memorandum of suit made by the plaintiff’s counsel, in which all the names of the plaintiffs and defendants are set forth, including the five infant Hanson children; but in this memorandum of suit the name of P. St. Geo. Barraud does not appear. To this memorandum of suit is appended this further memorandum by plaintiffs’ counsel: “Appoint W. A. Todd guardian ad litem for the infant defendants.” The five Hanson children being the only infant defendants mentioned in connection with the suit up to that time, they were the only “infant defendants” who could possibly have been referred to in the memorandum directing the appointment of a guardian ad litem. The memorandum of suit is the chart by which the clerk is to be guided in maturing the cause for hearing, so far as parties are concerned. Accordingly, the subpoena following the memorandum of suit was issued against all the defendants by name, including the five infant Hanson children, and the name of P. St. Geo. Barraud does not appear therein. In the entry by the
The answer filed, a formal paper of a few lines, purports to be the answer of the five infant Hanson children, and of the infant, P. St. Geo. Barraud, by Westwood A. Tood, their guardian ad litem. It has been shown that W. A. Todd had never been appointed, so far as appears from the record, guardian ad litem for P. St. Geo. Barraud, and his assuming in this answer, to act as such, cannot make him so, unless the court afterwards recognized and treated him as such.
The first decree in the cause of Barraud v. Marshall is dated October 7, 1894. It brings the cause on to be heard upon the bill taken for confessed as to some of the defendants, upon the answers of others, and upon the answer of the infant defendants, by their guardian ad litem, with general replication to the answers, and upon the exhibits filed. As already seen, no guardian ad litem had been appointed for P. St. Geo. Barraud, and the case at the time of this decree, so far as infants were concerned, had only been matured as to the 'five infant Hanson children who were named in the memorandum for suit, in the subpoena, and upon the clerk’s rule docket. P. St. Geo. Barraud not having been at this time made a party it cannot be affirmed or presumed that the court, by the use of the words “infant defendants,” meant any other infant defendants than those named in the subpoena and upon the rule docket, as to whom the cause was then matured, or intended its action in that regard as a recognition by it of the answer in question as the answer of any other person than parties to the suit. Galpin v. Page, supra.
The view that the court did not intend to include in the expression “infant defendants,” P. St. Geo. Barraud, who was
Hnder these circumstances it cannot be doubted that when the court referred in its decree to “infant defendants" it had reference to and intended only to include the five infant Hanson children immediately before set forth by name in the caption of its decree, who had been named in the memorandum for suit, the subpoena, and in the rule docket, as to whom the cause had then been properly matured, and did not intend to enlarge or extend the operation of those records by including another infant who was not then, a party to the suit. Ho where in the record do we find that W. A. Todd was ever recognized or treated by the court as the guardian ad litem of P. St. Geo. Barraud. On the contrary, any such recognition is excluded by the facts appearing of record. Myers v. Myers, &c., 6 W. Va. 369. The only mention of the name of P. St. Geo. Barraud in the entire record is, as we have seen, in the bill, and in. the caption of the answer of a guardian ad litem appointed, as shown, for the five
It is contended by the appellants that one cannot be a party to a suit unless named in the bill. Mosely v. Cocke, 7 Leigh, 224. This is true, but for much stronger reasons, merely naming him as defendant in the bill is not sufficient. As already pointed out, he must be brought within the jurisdiction of the court by citation, voluntary appearance, legal representation, or by some means recognized by the law as sufficient. He must have the opportunity of being heard. McVeigh v. Underwood, supra; DeWolf v. Mallet, 3 Dana, 214; Estil v. Clay, 2 A. K. Marshall, 497. If, however, it were conceded that P. St. Geo.' Barraud had been made a party, by guardian ad litem, to the cause of Barraud v. Marshall, the result would still be the same, because under the pleadings therein a sale of the remainder interest in the “Barrons” farm was foreign to the object of that suit. The suit was not, as suggested, for the partition of the “Barrons” farm. Hnder the will of the elder Barraud the “Barrons” farm was made the subject of a specific devise; the life estate therein being given to D. 0. Barraud, Jr., and the remainder to the issue of the life tenant. Each owned a separate estate, wholly independent of the other, and neither had any interest in the estate of the other. D. 0. Barraud, Jr., owned a joint estate with others in the large residuum of his grandfather’s estate, and it was this interest that he sought to subject to the payment of his debts by a partition thereof between himself and the joint owners with him. There was nothing to prevent the creditors of D. 0. Barraud, Jr., from subjecting his life estate in the “Barrons” farm to the satisfaction of their liens. The object of the suit was to reach his undivided interest in the residuum of his grandfather’s estate. One difficulty in the way of this consummation was the life estate therein of the widow of the elder Barraud. She, however, united in the suit in order to signify thereby her consent to a partition of the
In view of these well settled principles, the action of the court in selling, under the circumstances disclosed by the record, the remainder estate of the appellees in the “Barrons” farm, was in excess of its jurisdiction and contrary to the establish law. Mosely v. Cocke, 7 Leigh, 224-6; Wade v. Hancock, 76 Va. 625; Seamster v. Blackstone, 83 Va. 232-4, 2 S. E. 36, 5 Am. St. 262; Anthony v. Kasey, 83 Va. 338, 5 S. E. 176, 5 Am. St. 277; Bigelow v. Forrest, 9 Wall. 351, 19 L. Ed. 696; Windsor v. McVeigh, 93 U. S. 282-3, 23 L. Ed. 914.
In conclusion, we are of opinion that no guardian ad litem was appointed, or recognized by the court as such, for P. St. Geo. Barraud in the case of Barraud v. Marshall; that not one of the appellees has ever had the opportunity to be heard in that case; that the action of the court in selling the remainder interest of appellees in the “Barrons” farm was beyond the scope of the pleadings, and hence in excess of its jurisdiction; and, therefore, that the decrees and other proceedings in the cause of Barraud v. Marshall, so far as they affect the rights of the appellees in and to the land in controversy, are null and void.
For these reasons the decree appealed from must be affirmed.
Affirmed.-