Shields v. Powers

Scott, Judge, delivered the opinion of the court. This record presents a case of great hardship on the infants whose lands have been sacrificed under an erroneous decree; but when we see that they are not to be benefitted by the result of this suit, whatever it may be, our regret at the want of conformity to law in the proceedings by which they were deprived of their inheritance is much diminished, as their rights, whatever they were, have all, by process of law, been conveyed to opposing claimants, those claiming against the erroneous or invalid proceedings being purchasers for an inconsiderable sum at an administrator’s sale made for the payment of the debts of the ancestor of the infants. The erroneous judgment, under which the infants’ lands were sold, was brought up to this court and reversed on a-writ of error, but no supersedeas having been applied for or obtained pending the writ of error, the land was sold to one under whom the plaintiff claims. Now we know of no principle by which we can distinguish this case from all others in which an erroneous judgment is reversed on error. In such cases a sale under execution before the reversal passes title to the thing sold, and those who have been deprived of their property by the sale must look to a restitution of the fruits of it only. All the cases referred to by the defendants, in which it was held that decrees taken against infants for want of an answer, pro confesso, were erroneous and void, were [318] original suits in which the regularity of the proceedings in obtaining or proceeding to judgment were reviewed. They were cases on appeal or standing for judgment, and not collateral suits, as this is, brought to declare as nullities the proceedings in an original suit. We do not see a distinction taken between the reversal of judgments against infants and those against adults. The case of Wyatt v. Mansfield’s heirs, 18 Ben. Monr. 779, is an anomalous one and founded on statutes with which we have no familiarity. In this case, it seems, the minors were served, and guardians ad litem appointed, who never consented to act, and the bill was taken as confessed against the minors ; and without any proof a decree was rendered against them. Before, however, any final decree was rendered, a guardian ad litem appeared and objected to a decree without proof, but his objection was overruled. If the not giving a minor a day after his attaining his majority was error, we do not distinguish it from any other error for which a decree might be reversed. Perhaps in such cases, as a minor was entitled to it, he would be allowed the benefit of it whether it was granted him or not. But the answer to this objection is that, as our law now seems to stand, the minor has no such right in any case. The case of Ruby v. Strother, 11 Mo. 417, was overruled by the case of Creath v. Smith, 20 Mo. 113, concurred in by a majority of the court. Reversed and remanded; the other judges concur.