M'Allister v. Moye

HaNDY, J., delivered the opinion of the court. This was a bill filed in the District Chancery Court at Fulton, to enforce a lien for the purchase-money of certain lots of land, under the following circumstances:— The appellant, the defendant below, purchased the lots of land in question, from Andrew J. Evans, and Frances his wife, paying for the same one thousand dollars in cash, and executing his promissory note for fifteen hundred dollars, payable to Evans and wife, or bearer, on the 1st March, 1852; and Evans and wife executed to him a bond for title, conditioned to make or cause to be made to him, his heirs and assigns, “ a good and sufficient title, with the usual covenants of warranty, on the payment of said note.” This note was transferred to Moye and Adams, who became the bond fide holders of it before its maturity. The bill is filed in the name of the administrator of Mrs. Evans, who died before it was filed; Moye and Adams alleging that the note remained unpaid, their readiness to make title according to the bond on the payment of the note, and claiming to have the lots subjected to the lien for the unpaid purchase-money. The answer denies that Andrew J. Evans had any title to the lots sold except one, and avers that the title to the other lots was in his wife, as her separate property. It also denies thafthe complainants have the power to make or cause to be made, a title according to the terms of the bond. In support of the offer to make title contained in the bill, the complainants filed, before the hearing, a deed from Andrew J. Evans to the appellant, for the lots in question, with general warranty ; also a deed for the same from James Carlisle to appellant, with special warranty against the grantor and his heirs; also a deed for one of the lots from Edward J. Arthur to appellant, [262] with general warranty. It appeared, by a copy of a deed, filed as an exhibit to the answer, that four lots had been conveyed to Mrs. Evans, by her father, in the year 1842, and were her separate property. ■ And in order to show that the- title of her heirs was not outstanding, the complainants offered as proof, a transcript of the record of the Probate Court, on a petition of the guardian of the minor heirs of Mrs. Evans, for the sale of the lots in question, and the proceedings thereupon, under which the lots were decreed to be sold, and were sold by the guardian, and purchased by Carlisle. On the hearing, the vice chancellor decreed in favor of the complainants, and this appeal was thereupon taken. Several objections are urged against the propriety of the decree, but we deem it necessary to consider only two of them. 1. It is objected that the decree and proceedings in the probate, did not divest the title of the minor heirs of Mrs. Evans, because no notice, either by personal service of a citation, or by publication, was given to them before the appointment of a guardian ad litem, and, therefore, that the decree and sale under it were void. In answer to this, it is insisted that the necessity for the appointment of a guardian ad litem, only exists in a court of chancery, and that the rule only applies there; and further, that under the provisions of the fourth section of the act of 1846, Hutch. Code, 728, the general guardian is the proper person to protect the rights of the minor, and a guardian ad litem is dispensed with; and that as the general guardian was already a party to the proceeding, being the petitioner, there was a party to the suit competent to represent and protect the minors. We cannot agree with these positions. In the first place, there is as great a necessity for the appointment of a guardian ad litem, to protect the interest of the minor in the Probate Court, as in a court of chancery. Rights of the greatest importance are settled; and no reason is perceived, why the modes of proceeding which have been found necessary to protect the interests of infants, in the latter court, should not be required in the former. And it is the well-established practice in chancery, to give notice to the minor, either by service of process or by publication, and then to [263] appoint tbe guardian ad litem; and without such notice, either actual or constructive, the court has not jurisdiction, and cannot appoint a guardian ad litem. Stanton v. Pollard, 24 Miss. 154. In the second place, the statute of 1846 has no application to a case like the one under consideration. The notice to the guardian required by that statute was not and could not be given, because the guardian was already the petitioner; and if cited, it would have been only to answer his own petition. The statute contemplates a proceeding not instituted by a guardian, and the notice to him is in order that he may “appear and defend the rights of the minor;” and it expressly provides that if he be a party personally interested, a guardian ad litem shall be appointed. The presumption of law is, that he is interested personally in a manner which may prejudice the rights of the minors, when he institutes a proceeding against them, which may divest their interest in their real estate. And this view appears to have been acted upon in this proceeding; for there was a guardian ad litem appointed, though not in such a mode as to clothe him with the character of such guardian. We do not think, therefore, that the proceedings in the Probate Court divested the title of the minors to the land. 2. But conceding that those proceedings vested a good title in Carlisle, it appears by the record that he did not execute such a deed to the appellant, as he had a right to require under the bond for title executed to him by Evans and wife. That bond was not obligatory on Mrs. Evans or her heirs, because she was a feme covert when she executed it. Yet it would have been sufficient if her husband could have performed the condition. That condition was to convey a valid title in fee simple with “ the usual covenants of warranty,” or to cause the same to be done. These terms import a warranty against all other titles, claims and incumbrances. If the deed of Carlisle had been of that character, there would have been much more ground for claiming that Evans had performed the condition of his bond. But the deed contains only a special warranty against him and Ms heirs, and those claiming under them. By the terms of the title-bond, payment could not be required of the appellant, until Evans should make or cause to be [264] made such a deed of conveyance to him; and none such having been made or tendered, it follows, that the vendors or those claiming through them, cannot compel the payment of the purchase-money. The decree is, therefore, reversed, and the bill dismissed.