McLeiter v. Rackley

Smith, C. J., delivered the opinion of the court. The appellee brought this suit in the court below for a partition of two adjoining parcels of land in which she claims to own a third interest inherited from her mother, and, from a decree in accordance with the prayer of the bill of complaint, the appellants have brought the case to this court. As to one parcel of land, the appellants claim to have acquired the appellee’s title thereto by adverse possession, and as to the other they claim under a deed executed thereto by the appellee while she was a minor pursuant to an order of the chancery court removing her disabilities of minority. As to the appellants’ claim to have acquired title to one parcel of the land by adverse possession, it will be sufficient to say that the court below committed no error in holding" that this land was not held adversely to the ap-pellee’s mother, and therefore did not begijn to run against the appellee until she had reached her majority, which was less than ten years before this suit was brought. As to the other parcel of land, the appellee’s contentions are: (1) That her disabilities were removed without her knowledge or consent; (2) that the procedure provided by section 544, Code of 1906 (Hemingway’s Code 1927, section 316), was not here complied with; and (3) that the chancery court is without power to remove the disabilities of minority of a person under fourteen years of age. *87 Assuming that a minor’s knowledge thereof and consent thereto is necessary to the validity of a decree removing disabilities of minority, it is manifest that the decree by which the appellee’s disabilities of minority were removed was rendered with her knowledge and consent. The petition for the removal of the appellee’s disabilities of minority is in her own name, “by her next friend, Aline Sorrell,” and alleges: That ‘ ‘ the said minor is thirteen years of age, that she has neither father nor mother living, and that her next of kin are her two brothers, E. J. Goodier of Beaumont, Tex,, and H. E. Goodier, 925 Orleans street. New Orleans, La., she having no other brothers or sisters.” The petition was sworn to by Aline Sorrell. No process was issued for the appellee’s two brothers, for the reason that they entered their appearance in writing, and consented “to decree for the removal of the disabilities of said minor as prayed in said petition. ’ ’ The decree removing the appellee’s disabilities of minority recites that: “The brothers and next of kin of said minor having entered their appearance to said petition, and consented to a decree according to the prayer thereof, ordered, adjudged and decreed that the disabilities of minority be removed to the extent of enabling her to join her two brothers in executing a deed to the said lot of land, and in executing a valid receipt for the purchase money thereof.” Pleadings may be signed by the party or his solicitor (section 576', Code of 1906 [Hemingway’s Code 1927, section 351]), and, as recently held in Wilkerson v. Swayze, 147 Miss. 141, 113 So. 327, the issuance of a summons may be waived by the next of kin in a proceeding for the removal of disabilities of minority. It is not necessary for a decree removing disabilities of minority to recite that the chancellor heard evidence in *88 support "thereof. That he properly satisfied himself that the disabilities should be removed will be presumed. Section 543, Code of 1906 (Hemingway’s Code 1927, section 314), which confers upon the chancery court power to remove disabilities of minority, does not prescribe a minimum age therefor; the only requirement in this regard being that of section 546, Code of 1906 (Hemingway’s Code 1927, section 318), that the court shall enter such decree “as may be for the best interest of the minor.” It may be-that there is an age under which infants will be conclusively presumed to be without discretion, but the age of thirteen is not. Potera v. Brookhaven, 95 Miss. 774, 49 So. 617. The cases of Doles v. Hilton et al., 48 Ark. 305, 3 S. W. 193, and Dalton v. Bradley Lumber Co., 135 Ark. 392, 205 S. W. 695, were decided under a statute different from ours, and therefore are of no value here. The decree of the court below will be reversed in so far as it holds that the deed executed by the appellee was void, but in all other respects will be affirmed. Affirmed in part, reversed in part, and remanded.