Rule v. Broach

Campbell, J., delivered the opinion of the court. The decree of the Probate Court, made in May, 1857, for the sale of the land, was void as to Elizabeth and Emily Bryant, the wards of Dickson, on whose application the sale was ordered without citing them to appear. The thirteenth section of “ An act to amend the probate laws of the State, and for other purposes,” approved March 1, 1854 (Sess. Acts, p. 65), required “ all persons interested, residing in the State, * * * to be cited,” etc., when such an application was made. The learned judge below rightly concluded that Burrus v. Burrus, 56 Miss. 92, had reference solely to the provisions of the Code of 1857. In Johnson v. Cooper, 56 Miss. 608, the minors were duly cited. In this case they were not cited, as the law required, nor was a guardian ad litem appointed for them. The decree for sale being void as to some of the parties, was void as to all, according to Hamilton v. Lockhart, 41 Miss. 460, the only case in which such a decree has been held yoid when attacked collaterally, and which ignored the manifest distinction between judgments at law which are entire and decrees which are not, but which we are not disposed now to disturb. It is not to be inferred from our unwillingness to [556] overrule the case cited that we will follow it in any other cases besides decrees for sales in probate proceedings. The defendant below, being in possession of the land, should not have permitted it to be sold for taxes, and was rightfully denied the benefit of the outstanding tax-title in another as a shield to his possession. He could not have purchased.at the sale for taxes so as to hold the land against the plaintiffs, and, being precluded from purchasing himself, he could not claim any advantage from the purchase by another. The defendant could not defend the action under the right of the widow of Bryant as dowress, in view of the doctrine, settled in this State, that her right is personal to her and not assignable. Judgment affirmed.