| Miss. | Oct 15, 1870
Application was made to the probate court of Panola county, by Isaac Smith, administrator of the goods, etc., of R. S. Wells, deceased, to sell land, on the suggestion of the insolvency of the estate, 'and for the appropriation of the proceeds to his debt. The- cause is brought to this court to review the decree of the probate court, directing a sale.
Several errors are assigned: 1st. That Emma Wells, 'one of the children and heirs of the intestate, being a minor, was not properly in court. Affidavit was made that the minor, was not properly in court. Affidavit was made that the minor was absent from the state, at Pickensville, Ala., and thereupon, by order of the court, citation was directed to be sent to her by mail, by the clerk, and publication made. It was averred that she had no guardian. At the proper time, a guardian, ad litem, was appointed, who put in the formal answer for his ward.
We had occasion in John A. Winston & Co. et al. v. Chas. McLendon, adm’r., etc., MS. opinion, to examine the several provisions of statute law, as to the mode of service on minors, in proceedings in the probate court; that was a proceeding to sell land. Rev. Code, 149, art. 98, requires a service on the guardian. If no guardian has been appointed, the court shall appoint a guardian ad litem. Art. 82, page 431, general in its terms, declares “ no decree shall bind or conclude á minor having a guardian resident in this state, unless the
If there be a guardian, it is only on the contingency of his being interested or failing to appear, that the court can appoint one for the special occasion. The tenor of the statute is, that ib. probate proceedings, the minor must be represented and defended by his regular guardian, and only in the special cases therein mentioned (if there is no guardian regularly qualified), has the court power to appoint, pro hoo vice. In this case the minor, Emma, had no guardian, and the very case contemplated by the statute, existed for the appointment of a special guardian. We think, therefore, the first error assigned is not well taken.
The second error assigned is, that the final decree was made at the same term at which the answer for the minor was filed, and that it was improper to go to final hearing until after the expiration of five months.
It is well settled in the adjudications of this court, that the answer for the minor puts in issue the allegations of the bill or petition, and as against the minor the bill or petition must be proved. The minor is incapable of making admissions or waiving her rights. There cannot be a pro confesso against the infant, as held in the case of Winston & Co. v. McLendon, adm’r. The infant cannot be deprived of her estate in lands except by showing a case within the statute authorizing a sale. It was necessary, therefore, as a condition precedent to a decree against Emma, the infant, that there should have been proof made of the insolvency of the personal estate. The final decree recites 'that the court had maturely considered the allegations and proofs, and being satisfied, etc. In accordance with the precedents, we are obliged to infer that there was sufficient evidence before the court to uphold .the decree. The litigant objecting to the sufficiency of evidence must employ the proper means to bring that question before this court. In the absence of record testimony to the contrary, the presumption is in favor of the correctness of the decree.
The statutes do not require, after the answer of the adult heirs, or of the guardian ad litem for an infant, that the cause shall stand over for five months to get in testimony. That statutory rule was confined to the chancery court. The last clause of art. 98 of Revised Code, 449, directs the mode of procedure, to-wit: “ At the time specified in the summons or publication, or at such other time as may be appointed, the court shall proceed to hear the allegations and examine the proofs,” etc., etc., “and make decree,” etc.
The chancery court, in making this decree of sale, was properly guided by the law, which, in the same case, would have controlled the probate court but for the transfer of its jurisdiction, and might well have proceeded to hear the allegations and proofs of the respective parties at the time specified in the citation or publications, or at some other time appointed.
The fourth assignment objects to so much of the decree as appoints the disposition of the proceeds of the sale.
The fifth assignment denies the p>ower to do more than sell the interest of the intestate in the land.
The allegations of the petition are, that the intestate bought from Smith, the land sought to be sold on a credit', the vendee retaining the title, but entering into bond to make conveyance, on, payment of the purchase money, and that a large part of the purchase money is unpaid, for which there is in favor of Smith, a lien on the land. It was said in
This proceeding seems to have been conducted in accordance with sec. 138, Rev. Code, 458, which permits a sale of personal property, to complete the payment for the land when the vendee dies before final payment, and the court “ may order the sale of such land or the interest of the deceased therein, on such terms and conditions as it may think proper, all persons interested being first summoned.” The entire section looks to the application of the proceeds of the sale, to the vendor of the land; the language is, the sale is to be made, “ to make payment therefor (the land). To such a suit, the vendor of the land is an <£ interested party ” and proper to be before the court. Smith, the administrator, is the vendor, and creditor of the intestate, and he makes the application.
A sale made under this section, is not for the benefit of creditors at large, nor is the fund subject to fro rata distribution. The legislature evidently recognized the “ prior lien ” of the vendor for the purchase money. If the deed has been executed, the lien still exists; if retained, it exists.
It is further manifest that the statute embraces the idea of either a legal or equitable estate, and interest in the decedent. This is implied in the language, “ the court may order a sale of such land, or the interest of the deceased therein. If the land is ordered to be sold, the entire estate passes. If the interest- of the deceased only is sold, then the vendee is subrogated to the place of the vendor, and becomes purchaser of the equitable title.
The foregoing views cover all the points made by the assignment of errors. Let the decree be affirmed.