Boykin v. Collins

SHARPE, J. This appeal is from a judgment rendered for the defendant in a statutory action of ejectment. Defendant holds the lands under a deed for a half interest therein executed by the plaintiff when he was a minor, but subsequent to a chancery decree for the removal of his disabilities of non-age. The trial was had upon agreement of facts together with an agreement providing in substance that the judgment should turn upon the validity vel non of the proceedings for removing plaintiff’s disabilities and be rendered for him only in the event these proceedings were void. The chancery proceedings were begun by a petition filed on the 16th day of January, 1883, by plaintiff and his guardian under that provision of the statute which authorizes the removal of a minor’s disabilities, “whenever such minor having no father or mother but haying a guardian shall petition the chancery court to be relieved from the disabilities, and the guardian shall join in such petition and the court shall be satisfied that it is to the interest of such minor.” — Subdivision 3, § 829 of the present Code, Code of 1886, § 2357. Affidavits were taken in support of the petition, and on February 20th, 1893, that being the day set for the hearing, the decree was rendered. The validity of these proceedings is questioned only upon the ground that in the petition it was not alleged that the relief therein sought would be to the interest of the plaintiff; that the chancery records are silent as to whether the register published notice of the filing of the petition; and that they do not show the court was satisfied, the granting of relief was to the plaintiff’s immediate as well as to his prospective interest. 1. Power in courts of chancery and chancellors for the removal of disabilities of non-age exists only by virtue of the statute referred to, and can be called into exercise only by a petition conforming substantially to the statutory requirements. The statute, hoivever, does not either in terms or by fair construction, require that the [411] petition shall contain any averment to effect that to grant the same would subserve the minor’s interest. Such an averment would be of a mere conclusion as to a result and not of a fact of jurisdictional or other character. 2. The filing of the petition established the jurisdiction over its subject matter and jurisdiction over persons was not lacking. The duty of publishing notice en: joined on the register by the statute (Code, 1886, § 2359; present Code, § 831), is: created to the end of affording opportunity for contests under section 832 of the Code of 1896. Such contests are purely vicarious and the provisions therefor do not imply a necessity for the acquirement of jurisdiction of persons other than the petitioners. A failure on the part of the register to perform that duty would be an irregularity in procedure, affecting the propriety, but not the power, of rendering a decree on the merits of the cause. Therefore, conceding that the chancery court in acting for the removal of plaintiff’s disabilities was on the plane of a court of statutory .powers and that the validity of its proceedings in that matter is dependent upon the disclosure on the face thereof of everything essential to jurisdiction, yet, the publishing of notice not being so essential, the silence of the record in respect thereto does not in this collateral inquiry show the decree to be void. To this conclusion the decision in Cox v. Johnson, 80 Ala. 22, and those in other cases cited for appellant are not opposed. 3. There is no force in the criticism made of that part of the decree which is recitative of the court’s conclusion from the petition and evidence that “it will be to the interest of the said Marshall Boykin to be relieved of the disabilities of non-age.” That recitation is in conformity with section 833 of the Code of 1896. The judgment appealed from will be’ affirmed. Affirmed.