Hardy v. Pepper

Sykes, P. J., delivered the opinion of the court. In her lull in the chancery court the appellee, Mrs. Pepper, prayed for the partiting of certain lands and that a deed executed by her to her father be declared void and set aside. A decree was rendered in her favor in the lower court, the deed was set aside and canceled, and commissioners appointed to partite the land. Prom which decree an appeal was granted to this court to settle the principles of the case. The sole question presented is whether or not the deed made by the appellee to her father is invalid. At the time of the execution of the deed and now, the appellee is a [37] minor. Tbe appellee inherited a certain interest in lands from her mother. In 1915 appellee by her next friend, G. S. Pepper, and her father, W. L. Hardy, sought by ex parte proceedings under section 545, Code of 1906, to have her disabilities of minority removed. None of her kindred except her father, joined in this ex parte petition. Upon this petition a decree was entered removing her disabilities. Thereafter she sold her interest in these lands to her father. By this appeal we are called upon to construe sections 543, 544, and 545 of the Code of 1906, which sections were in force at the time of the removal of the disabilities of minority. The power thus conferred “is not judicial in its character; it may be exercised by the legislature without the intervention of other authority, or committed to any officer or commission having no judicial authority. The relief sought is private in its character, affecting no right of others; the privilege and the method of availing of it are created and defined by the statute, and the proceedings are valid only when in conformity to its regulations.” Marks v. McElroy, 67 Miss. 545, 7 So. 408. Under section 544 the minor by next friend could have made this application and her father could have been made the sole defendant. Instead, however, of pursuing this method, an ex parte petition was filed under section 545. These two sections present two separate and distinct methods of removing the disability of minority. The applicant may avail himself of either method, but the method selected must be strictly followed in order to make the proceedings valid. Under section 545 in an ex parte proceeding it is necessary that all kindred within the third degree known to the minor or to his copetitioners shall unite in the application. The father under the civil law is a kindred of the first degree. In addition to his uniting in this ex parte petition, all of the other known kindred of this minor within the third degree should have united before the proceedings were valid. There were kindred existing and known to the minor who were not joined. In [38] discussing section 494 in the case of Lake v. Perry, 95 Miss. 550, on page 564, 49 So. 569, 571, it is said: “The object of the statute plainly is to protect the minor from any injury that might accrue to him, either from an indiscreet application, or from haying an irregular or void decree entered. It is simply one of the many safeguards which the law most wisely throws around minors as being incompetent to manage their oivn affairs. Manifestly parents are directed to be cited as the ones most proper so to protect the minor, and they are ‘proper parties defendant,’ referred to by the statutes, where they are, or either of them is, alive.” It is the contention of the appellants in this case that there was a substantial compliance with the statute, that since the father joined in the application there was no reason why he should have been made a defendant, and that all proper parties were before the court. It is true that under section 544 the father ould have been made the sole defendant. It will be noted that this section further provides that any relative or friend of a minor may appear and resist the application. This proceeding, however, was not under this section, but under section 545. In construing section 545 in following the express “'language of the statute this court has held that in this ex parte proceeding “all the kindred within the third degree must be made parties to or join in the application.” Jackson v. Jackson, 105 Miss. 868, 63 So. 275, Ann. Cas. 1915D, 489. It will be noted that section 545 was amended by chapter 123, Laws of 1918, and it is now only necessary for two of such kindred to unite in the application. Every contention made by the appellants in this case has been adversely decided to them in the cases of Lake v. Perry and Jackson v. Jackson, supra. The lower court was correct in setting aside the deed, and the decree is affirmed and the cause remanded. Affirmed and remanded.