Bayne v. Stratton

Opinion of the Court by Judge Hobson Reversing. T. E. Stratton' and! R. Y. Stratton, his brother, owned jointly a tract of 172 acres of land in Shelby county. T. E. Stratton died on March 2, 1907, and R. Y. Stratton died on September 14,1907. They left surviving them a sister, Mary Stratton, a brother, J. C. Stratton, a lunatic brother, Jackson Stratton, and six nephews and nieces, the children, of a deceased brother. T. E. Stratton left a will by which he devised his half of the land to his sister, Mary, for life, and at her death to two of the nephews, E. [498] B. Stratton, and R. E. Stratton. R. Y. Stratton died, intestate, and Ms half of the land descended to his sister, the two brothers, and the children of the deceased brother. This suit was brought by Mary Stratton, E. B. Stratton, R. E. Stratton, and E. J. Doss as the personal representatives of R. Y. Stratton and T. E. Stratton. They alleged in the petition the facts above stated, and showed that all the debts of T. E. Stratton were paid by R. Y. Stratton before-his death; that R. Y. Stratton at Ms death owed a few small debts, but that his personal estate was more than sufficient' to pay -them. They alleged that the land could be divided without materially impairing its value so as to set aside to Mary Stratton, E. B. Stratton, and R. E. Stratton their part of the land, but that the remainder of the land could not be divided among the other heirs at law of R. Y. Stratton without materially impairing its value, and it would be to the best interest of all of the other heirs that the remainder of the land be sold and the proceeds divided. They made defendants to the petition the brother J. C. Stratton, the lunatic, Jackson Stratton, and the other four nephews and nieces, three of whom were infants under 21 years of age. J. C. Stratton, the brother, filed an answer to the petition, in which he admitted its allegations to be true, and joined in the-prayer of the petition for a division of the land and a sale of the part belonging to the defendants as prayed therein. The guardian ad litem for the infants filed a similar answer. The court appointed commissioners who went upon the land and made a division of it, allotting to the plaintiffs Mary Stratton and her two nephews, E. B. Stratton and R. E. Stratton about 95 acres of the tract, and to the defendants the remainder. The court thereupon en [499] tered an order for a sale of that part of the land which had been allotted to the defendants oh the ground that it could not be divided between them. The sale was made, and J. C. Bayne became the purchaser at the price of $7,671.63. The sale was reported to the court. Bayne filed exceptions to the sale. His exceptions were overruled, the sale was confirmed, and he appeals. Section 53 of the Civil Code of Practice provides, among other things, as follows: “If the defendant be of unsound mind the summons must be served on him and on one of the following named persons, if residing in the county, viz: On his committee; or, if he have no committee, on his father ; or, if he have no father, on his guardian; or, if he have no guardian, on his wife; or, if he have no wife on the person having charge of him.” The lunatic, Jackson Stratton, was confined in an asylum. He had no father or guardian or wife. The person having charge of him was the superintendent of the asylum. The process was served on the lunatic, and no one else. The service of the process on the lunatic in the asylum, without service on any other person named in the statute, did hot bring him before the court, or give the court jurisdiction over him. He not being before the court, the order of the court appointing a guardian ad litem for him was unauthorized, and the report of the guardian ad litem added nothing to the unauthorized proceeding. The lunatic, Jackson Stratton, is not before the court, and the exceptions of the purchaser to the sale on this ground should have been sustained. The words “if residing in the county” in section 53 refer to the county where the person of unsound mind is at the time he is served. Otherwise the summons could rarely be [500] served, on the person having charge of him where he was not in the county in which the action was brought. Thie service on the lunatic himself is in many cases wholly valueless, for his protection and the requirement of service on one of the other persons named in section 53 is essential to the protection of this unfortunate class of persons. Jurisdiction can only be obtained over them by service of process in the manner provided by law; and, when the process is not served, the court is without power to make any order affecting the'mi in any way. .There is another defect in the proceeding. Doss, as personal representative when there were no debts to be paid out of the real estate, had no interest in the sale of the land or the division of the proceeds among the heirs at law. Miary Stratton, E. B. Stratton and R. E. Stratton, when their part of the land was allotted to them, bad no interest whatever in the remainder of the tract, which was allotted to the infants, the lunatic, and two other persons. By section 490 of the Civil Code of Practice a vested estate in real property jointly owned by two or more persons may be sold, in an action brought by either of them, if the estate be in possession, and the property can not be divided without materially impairing its value or the value of the plaintiff’s interest therein. But here the plaintiffs had no interest whatever in the land ordered to be sold, and to allow a person Who has no interest in the land to procure a sale would be a palpable abuse of the statute. It is true that J. C. Stratton, who did own an interest in the land, filed an answer, in which he joined in the prayer of the petition, but there was no process on this pleading. The sale was not made on any proceeding instituted by him. It is a familiar rule that the court has [501] no inherent power to sell the land of infants, that its jurisdiction comes only from the statute, and that it has no power to sell where the statute has not been complied with. By section 489 of the Civil Code of Practice an infant or a lunatic’s land may be sold in the manner therein pointed out, but manifestly there was no attempt to comply with this section. It is earnestly insisted that the sale is beneficial to the infants and to the lunatic, and although it is erroneous, it was not void, and that the purchaser should be required to take the title. We can not concur in this view. The lunatic is not before the court. The sale of the infant’s land has been ordered in a proceeding not warranted by the statute. Neither the lunatic nor the infants are hound by the sale, and the purchaser should not be required to accept such a title or to pay for it. On the return of the ease to the circuit court the division of the land will be set aside, as Jackson Stratton was not before the court when it was made; and the plaintiffs will be allowed to amend their petition by joining with them J. C. Stratton as party plaintiff and conforming their proceeding to the provision of the statute. The proof taken on behalf of the plaintiffs does not sufficiently show that the. land belonging, to the defendants can not be divided without materially impairing its value,, or the value of the interest therein of the party asking the sale. Judgment reversed, and cause remanded, for further proceedings consistent herewith.