Albright v. Flowers

CAMPBELL, J., delivered the opinion of the court. A bill was exhibited by some of the heirs of Henry Flowers, deceased, to obtain partition or sale of land descended from him. The proceeding is under chapter 26, of Code of 1871. The bill shows that one of the heirs of Henry Flowers had sold his interest in the land and convoyed it to Sophia Strickland. All parties shown by the bill to be interested wore brought in by service of process or publication. A decree was made appointing commissioners to make partition of the land as prayed for. These commissioners reported to the court the impossibility of making partition fairly and equally, without impairing the value of the land, and thereupon the court ordered the land sold, and proceeds to bo divided between those entitled thereto; and the sale was made and reported to the court, when A. J. Albright, the appellant, now appeared and objected to a confirmation of the sale, and represented that he [249] and his brother, George Albright, were adults, and not infants, as they had been regarded and treated; and that it was not true that Sophia Strickland was the purchaser of the interest of Henry Flowers, one of the heirs in said land, but that David Strickland had purchased and owned said interest of Henry Flowers, and had died, and descent was cast upon his heirs, whose names and places of residence are given. A guardian ■ad litem had been appointed for A. J. Albright and George Albright, and had answered for them. Upon this presentation the court refused to confirm the sale which had been made and reported, and set it aside, and the decree formerly made, and allowed A. J. Albright and George Albright to file answers to the bill, and gave complainants leave to amend their bill so as to bring in the heirs of David Strickland, now appearing to have an interest in the land. A. J. Albright did file his answer. Complainants exhibited a bill under the leave granted, which sets forth .the foregoing history of the cause. All the parties to the first bill are named in this. . An appearance was entered by solicitors for the heirs of David Strickland, and for others named to the amended bill. The cause progressed to a decree appointing commissioners to make partition, and they reported, as the other commissioners had done, the impossibility of partition fairly and equally, and thereupon a decree of sale was made, and from this decree A. J. Albright appealed. His first assignment of error is that the court proceeded to a ‘ ‘ decree before the Albright infants were before the court by process served.” The record shows that process was personally executed on the Albright infants and on their father. This was a summons to answer the original bill. This assignment is based on a mistake as to the fact it assumes, and is not well taken. The second assignment is ‘ ‘ that the parties defendant to the amended bill were not brought before the court by notice, process served, or publication.” It is true that those who had been properly made defendants to the original bill were not again summoned or cited by pub [250] lication, but that only the heirs of David Strickland, and A. J. Albright and George Albright, who had been regarded and. treated as minors in the former proceeding, were served with process under the amended bill. As the new bill did not, in the slightest degree, propose to vary or affect the interest of' defendants to the original bill, it was not necessary that they should be summoned to answer the amended bill, under which their rights remained just as before, and the sole object of' which was to bring before the court those who held an interest which, in the original bill, had been stated as belonging tO' Sophia Strickland. She was made a party to the amended bill by an appearance entered for her by solicitors. Those' defendants to the original bill who were before the court cannot be heard tocqmplain of not being summoned to answer a bill which did not touch their interests. Story’s Eq. Pl., § 343. The 3d assignment is that ‘ ‘ no guardian ad litem was. appointed to answer the amended bill for but one of the eight minors.” The remarks made by us under the 2d assignment dispose of this. All the minors who were made, defendants to the original bill were represented by a guardian ad litem, properly appointed. We do not understand that any complaint is made of the appointment of the guardian ad litem-for Bolivar Strickland, the only infant brought in under the-amended bill. The 4th assignment is that the “decree for a sale of the land was taken against infants, without proof that, said lands could not be divided in kind.” This is not error. The statute, § 1829, Code of 1871, authorizes an order of sale-upon the report of the commissioners, appointed to make partition, that it is impossible to make partition fairly and equally, and this applies as well where some of the parties interested in the land are infants as in other cases. The 5th assignment, is that the ‘ ‘ commissioners appointed to divide the land did not. take the oath prescribed by the statute.” We think the oath taken sufficient, and find no error in this. Beyond all this, we think the appellant has no right to com [251] plain for others of errors, if they existed, which in no way affect ■ his rights. He was served with summons issued on the orig- ■ inal bill. After the first decree of sale, and the sale under it and its report, he appeared and upset the proceedings and put. in his answer, and thus became a party, and was bound by the • subsequent decree for partition and for sale, when it was reported by the commissioners that it was impossible to divide • the land. The decree is affirmed. Judge Chalmers, having been of counsel, takes no part in this decision.