Williamson v. Warren

Campbell, J., delivered the opinion of the court. The demurrer to the cross-bill was properly sustained. It is not necessary to the valid exercise of the power of the-Chancery Court to decree a sale of the land of a ward on the-petition of his -guardian', under section 1221 (erroneously [202] ■printed, section 1121) of the Code, that the petition should be verified by the oath of the guardian. The petition “ is but an incipient step ” towards bringing the matter before the •court. It is the means of procuring proper process, and of presenting the particular ground on which a decree of sale is asked. “ The essential thing in giving the court jurisdiction "to order the sale is the notice to the parties interested.” Eldridge v. McMackin, 37 Miss. 72. This is the doctrine .•announced as applicable to a decree for the sale of land on ■petition of an administrator; and it is equally applicable to a proceeding by a guardian to obtain a decree of sale of land. The averment of the cross-bill — that the petition of the ¿guardian for the sale of the land was not presented one month before the decree of sale was made — is shown by other averments of the cross-bill to be untrue. The dates set forth in "the cross-bill show that the petition for sale was presented in ‘October, 1871, and the decree of sale was made in February, 1872. An order of the court appointing a day for the hearing of the petition, and for the issuance of process, is not an essential condition precedent to the validity of a decree of sale in accordance with the prayer of the petition. If a summons is “issued by the clerk, under the seal of the court, for the proper parties, .returnable to the next term of the court, and the ■process is duly executed, and the court “ shall proceed to hear ■•and examine the allegations and proofs of the guardian, and -also those who may appear and object,” and shall make a •decree of sale as provided by the statute, at least one month elapsing between the filing of the petition and the decree, the .“substantial requirements of the statute will have been complied with, and the decree of sale will be valid. The court has jurisdiction of the subject-matter of decreeing ■the sale of the real estate of a ward, and the summons duly •executed upon the proper persons, requiring them to appear 'before the court, at the proper time and place, to answer the ¿¿petition for a decree of sale, will give the court jurisdiction of [203] the parties, and it can render a valid decree of sale. The language of the statute, “ the court shall appoint a day at the next term for hearing the petition, and shall order a summons to issue,” is satisfied in its “spirit and true intent” by the issuance of the proper summons by its clerk, returnable at the proper term, and the subsequent approval and adoption of his act by the court, in proceeding “to hear” and decree upon the application. It is not necessary to the validity of a guardian’s sale of real estate that it shall be made at the door of the court-house of the county. It was not the purpose of this court, in Johnson v. Jones, 51 Miss. 860, to announce the proposition that a guardian’s sale of real estate must be made at the court-house door. The remark in the opinion, claimed by counsel as announcing that, was made solely with reference to the decision of Warren v. Reddy, and upon the assumption that it was rightly decided as to that, without the consideration of any legal proposition except the one then before us for decision. No law requires a guardian’s sale to be made at the courthouse door. Section 1038 of the Code has no reference to sales by guardians, which are regulated by section 1222, which does not designate where such sales shall be made, but requires that the guardian shall state in his report of sale the time and place of sale, the -very object of which is to enable the court to see if the sale was made at a proper place. The cross-bill having been dismissed, the case stood upon bill and answer, and the complainant below was entitled to the decree he obtained. Affirmed.