Kennedy v. Gaines

Tarbell, J., delivered the opinion of the court. Ejectment for lands described in the record. The plaintiffs in the action are the heirs of Alexander Armstrong, deceased. The defendant in the action offered in evidence certain proceedings in the probate court, showing a sale of the lands in controversy, under a decree of that court, and their purchase by one A. G. Heliums, from whom defendant deraigned title. This evidence was objected to on the ground : 1st. That the probate court had no jurisdiction of the subject matter. 2d. That no citations appeared to have been served on the Armstrong heirs. 3d. That only two of the three commissioners joined in the report of the sale on which the confirmation was made. 4th. That confirmation was made with [628] out citation, at a term of the court subsequent to the term succeeding the one nest after the sale. These objections were sustained and the evidence excluded as evidence of title in defendant. The jury found for plaintiffs. Hence, a writ of error. It is claimed here, that “ the court below erred in excluding from the jury as evidence of title in appellant the probate record offered by him for the purpose of showing title in himself to the lands in controversy.” The probate record referred to presents these facts : The demise of Alexander Armstrong, who died seized of the lands involved ; the appointment, by the probate court, of J. H. Thetford, to be guardian of certain of the heirs of the deceased ; the appointment of R. D. Petrie to be guardian of certain other heirs of deceased; the petition of Jasper N. Armstrong, an adult heir of deceased; R. D. Petrie, guardian 'of his wards, named, and Jas. H. Thetford, guardian of his wards, named, heirs of said deceased, entitled against John W. Wells, administrator of the estate of the deceased, addressed to the judge of probate, setting forth the lands of the deceased, that the petitioners were entitled to distribution of his estate, and that “ owing to the situation of the lands above described, it would be manifestly for the interest of the several distributees to sell the same, and in order to insure a more equal distribution,” therefore, the prayer is, that the administrator be compelled to sell “ the lands described in the petition.” This petition was presented to the court in December, 1855. On the 11th of that month the decree of sale was rendered. This recites, the petitioners, describes the lands and orders them to be sold by the two guardians and the adult heir, their copetitioner, the proceeds to be by them distributed to those entitled. The decree recites, that “ the court being satisfied that all persons interested herein have been duly notified of this petition, and no objection having been made or appearing to said sale,” it is ordered, as before, and also, that the commissioners “ report all of their proceedings in this behalf'unto this court.” The report of sale was made by Petrie and Thetford, and is [629] sworn to in open court, July 14, 1856. The sale took place, January 21, 1856, and was confirmed by the court, July 15, 1856. A. G. Heliums became the purchaser on the sale, and the three commissioners joined in the conveyance to him. He conveyed his title, August 30, 1856, to the defendant in this action. For the just disposition of this case, it is believed to be necessary to determine two points, to wit: 1. Citations were necessary for the Armstrong heirs in the probate court. See Laws of 1854, ch. 2, sec. 13, p. 68; Hutch., p. 667, sec. 102. The language of the statute of 1854, by which the proceeding in this case is to be tested, is plain and positive, that process shall issue, and that all those interested shall be summoned when a petition for the sale of lands shall be presented in a probate court “ by any heir, executor, administrator, guardian or other person interested, under any statute now in force.” Could language be stronger or plainer ? In this case the petition is by the guardians of the minors and one adult heir. In such case, the statute says, citations shall issue. It is no answer for the omission of process to say, the heirs had notice, or that they appeared in the proceeding without process, for minors can waive no right. The adoption of the view of this matter contended for would seem to be dangerous to the rights of minors. M'Allister v. Moye, 30 Miss., 258, is considered conclusive of the point under consideration, if any precedent is needed for the practice under so clear a statute as the above. The lands in this case descended to the ten children and heirs of deceased. Title vested in these heirs, respectively, to the extent of the share of each. The petition for sale was by one adult heir, and by two guardians, who represented different, though all, the other heirs. In such case, the statute quoted required citations and service in the mode directed in that statute. 2. The recital in the final decree is not sufficient to sustain the action of the court. The recital is that the court was “ satisfied that all persons interested herein have been duly notified of this [630] petition.” This, of itself, is not evidence of the issuance and service of citations, nor of the service or execution of process. The language of this recital is wholly different from the language in the cases cited. And those cases are distinguishable from this or these facts or circumstances. On its face, this recital only implies notice or knowledge of the petition on the part of those interested, not issuance and service of process. Looking at the entire probate record, it is clear that the probate court was of the opinion that the heirs were in'court in the persons of their guardians, .and hence, that citations were not necessary. And this is the theory of counsel. The fact is manifest from the records and arguments of counsel that citations were not issued. This is fatal. In the consideration of this case, the adjudications cited by counsel, and many others, have been consulted. See 26 Miss., 520; 38 id., 420; 43 id., 569; 44 id., 226, 235, 296; 42 id., 155, 255; 47 id., 565; and Geo. Dig., pp. 366, 416, 417, 638, for other cases. Also, 9 S. & M., 290, 613; 31 Miss., 578; 45 id., 30; 38 id., 100; 24 id., 395, 504; 28 id., 710; 40 id., 210. This decision is not necessarily in conflict with the authorities ■cited, as each may be sustained upon its own facts and the particular statutes involved. Two other points of some practical importance, in cases resting on statutes prior to 1857, are made in this case : 1. That the sale of the lands involved was not reported to and confirmed by the court at its term next succeeding the sale. 2. That the sale was made by commissioners, the authority for which in probate courts is denied. Without discussing these points, judgment is affirmed on the prior grounds reviewed. Laws of 1854, p. 68, sec. 13 ; 30 Miss., 258.