Covington, Guardian v. . Covington

*172 PearsoN, J. The answer or affidavit of Mrs. Virginia Stewart denies squarely the allegation that the heirs of William L. Covington are entitled to one-half the lot, and makes the issue that from the exclusive possession of her father during his lifetime, from 1839 to 1857, that the lot was commonly called “ the John P. Covington store house and the ‘‘descent cast” and exclusive possession by his heirs without any claim or interruption, their title being concurred in and acted upon by E. P. Covington, their guardian, who is one of the heirs of William L. Covington, there is a presumption in law, in order to bar stale claims and to quiet titles, that William L. Cov-ington released or abandoned or surrendered his estate in the land to John P. Covington, her ancestor. To these allegations the plaintiffs enter “ similiter,” that is, accept the issue. His Honor erred in refusing to have the issue tried by a jury, with instructions from him as to the effect of exclusive possession for a great number of years, in England twenty, in this State ten, and if actual ouster by one tenant in common, submitted to or acquiesced in for a great many years, the party being under no disability when the exclusive possession was taken. From this ruling of his Honor the plaintiffs appeal, and this is the only question presented to us. See Day v. Howard at this term. In looking over the record it appears that E. P. Covington, who is the guardian of John P. Covington, Bascombe having arrived at age, and who is also one of the heirs at law of William L. Covington, makes use of the name of his ward in order to maintain a motion in the original proceeding, which is directly opposed to the interest of his ward, and works to his own benefit, both as one of the purchasers and as one of the heirs of William L. Covington, and he uses the name of his ward to set up a title adverse to him; and but for the fact that one of his wards, to-wit, Virginia, had married and was beyond his control, and now alleges the sole seizure of their father, by the management of a guardian, his wards would have been deprived of one-half of their patrimony. This is outside of the *173 matter, covered by the appeal, but we feel it to be our duty to call the attention of his Honor to this irregularity, apparent upon the face of the papers sent up to us, so that some other guardian may be appointed, and the heirs of John P. Cov-ington be put on one side and the heirs of William L. Cov-ington and the purchasers be put on the other, and the issue which involves the sole seizure of John P. Covington may be passed on by a jury, with special instructions, or else that the proceeding be dismissed, arid the heirs of William L. Cov-ington be left to assert their title by a petition for partition (See Smith v. City of Newborn, at this term,) met by a plea of “sole seizure,” so as to present the issue directly, and in a way to be binding upon all persons concerned. We also feel it to be our duty to call the attention of his Honor to«this anomaly in the proceeding — petition to sell land for partition made by the guardian of infant heirs — no cause sot out why , it was necessary to sell instead of renting out the “ store house and lot.” Guardian 'S a member of the firm that buys the 'house and lot, leaving the inference that his object was to divest the title,of his wards and put it into the firm ; and then to cap the climax, he sets up claim to one half of the house and lot for himself and the other heirs of William L. Cov-ington. These circumstances show that the pleadings, if they can be called such, should be amended so as to put all the heirs of John P. Covington as defendants, and the heirs of William L. Covington and the firm of Covington, Everett & Co., as plaintiffs, or petitioners. We will call the attention of his Honor to another matter. The Judge of Probate, Dr. Stewart, orders the sale, and allows himself $55 for his services, and reports to the Judge who confirms his action. Does it conform to the orderly course of the Court to allow the Judge of Probate to act as commissioner in selling, &c. ? Let this opinion be certified. Pee Cueiam. Judgment accordingly.