6797

#### *EX PARTE*PEARSON.

1. A guardian ad litem improperly appointed by a clerk of court upon petition of the mother in case in which she is plaintiff and there is no conflict of interest, may be cured by confirmation of appointment by Circuit Judge.

*3.*Opening Judgment — Jurisdiction—Guardian ad Litem — Parol Evidence. — That a cause is on docket at a term of court at which a particular judge presided, and a decree is afterwards filed by him therein, is presumptive that that judge heard the case according to law. That there appears in the record a consent to hear the case at chambers, signed by all the parties except the guardian *ad Mem,*that case (for partition) is marked “continued” on the docket and clerk’s journal or docket show no memoranda of case having been heard, will not overcome the presumption. The parol evidence in this case does not strengthen the rebuttal of the presumption.

3. lum. — Chambers—Ibid.—Consent to try a case at chambers by guardian *ad Mem*must not necessarily be in writing, especially where the agreement has been actually carried into effect by the trial.

4. Rule XIV op Circuit Court does not apply where an agreement is admitted or has been carried into effect.

Before Memminger, J., Marlboro,

May, 1907.

Affirmed.

Petition of John F. Pearson, Jamies Pearson, Annie May Pearson *et ail.*against John F. Breeden in case of Ann E. Pearson, as administratrix of Charles T. Pearson, against Alexander C. Pearson *et al.,*to set aside judgment. From order refusing motion, petitioners appeal.

*Messrs. Knox Livingston, Stevenson, Matheson & Stevenson,*for appellants.

The latter cite: *Appointment of guardian ad litem was irregular:*Buchanan’s Code, 136; 17 S. •C., 439; 23 S', C., 189, 166; 61 S, C„ 577; 25 S. C., 282; 71 a C., 17. *Can the record be contradicted by paral testimony?*24 Fncy., 194; 41 S'. C., 1; 19 S. G, 506, 253; 91 S'. W., 68'9. *Did Court have jurisdiction of subject at chambers?*14 Stat. 146; 27 S. G, 374 ; 45 S. G, 10; *Hardin*v. *303
      *Primmier,*30 Si. 'C., 4; Wait. Pnalc., 336'; 1; Wialit. P-rac., 549; *2*Hill Chi., 580'; M'oM. Eq., 190; 111 Rich:., 576. *John and Nancy held the land as tenants -by entirety:*39 S'. C., 275; 38 & C„ 39; 4 Kent., 136; 2 Kent., 132. *As to the construction of the deed to Charles and the heirs of his body and dying without children over:*37 S. C., 265; S'trob., 133; 4 Des., 660; 4 Kent., 220-1; 1 Rich. Eq., 141; 25 S. C., 291; 36 9. €., 366.

*Messrs. J. H. Hudson, C. P. Townsend, McColl & McColl*and *Pdward Melver,*contra.-

*Mr. Townsend*cites: *Vacating a judgment is a matter of discretion:*17 9. C., 454; 19 9. 'C., 557; 34 9. C., 11; 21 9. E. R., 270; 25 9. C., 405; 18 Ency., 108-; 1 9. E. R., 180; 9 9. E. R., 220; 31 S. E. Ri, 913. *Confirmation of irregular appointment of guardian ad litem cured defect: Middleton v. Sto'kes,*71 Si. C.; 56 S. C., 96; 23 S'. C., 166. *Presumption is Court had jurisdiction:*14 S. E. R., 204; 17 En'cy., 1075; 33- S'. E. R., 204; 5 Ency., 814; 3 Ency., 68. *As to the construction of the deed:*67 S. C., 133, 309; 1 Rich!. Eq., 411; 65 S¡. C., 345; 52 9.0., 554; Bail. E'q., 48; Bail. E., 231. *Deed being fee conditional land was assets for debts:*Bail. Eq., 228; 17 9. C., 550.

March 13, 1908.

The opinion of -the Court was delivered by

Mr. Justice Woods.

This appeal is from an order refusing to open and set aside a decree of Judge Cothran of 5th November, 1886, and the judicial sale of a tract of land made thereunder.

The following agreed statement of facts appears in the record: “In 1857, John Adamls and others conveyed the lands involved herein to John Pear-son 'and his wife, Nancy Pearson, who in turn, in 1870, conveyed to Charles T. Pearson. Nancy Pearson failed- to affix her seal- to the deed, and after her death, John Pearson, her husband, and her other *304heirs-at-law, joined in another deed conveying the promises to Charles T. Pearson. Thereafter, Charles T. Pearson died in 1883, and his- estate being insolvent, his 'widow on December 13, 1884, brought -aim action to marshal assets -and wind up -the -estate. In this proceeding it became necessary to determine what estate 'Charles- T. Pearson held in these lands, -and his Honor, Judge Cothran-, by decree dated November 5, 1886, -construed the -deed as giving -the lands in fee -conditional in part, and in -fee simple in part, to ‘Charles T. Pearson and held them subject to -his dabt-s, and decreed tham| to be sold in -aid of assets. At the sale James' B. Breeden, a mortgage creditor, bought the premises- in question- for $2,680, -and '-this sal-e wa-s reported to the Court and -confirmed -on April 21, 1887, and -thereafter upon the death of James- B. Breeden-, -under t-hie provisions of his -will, title to this property vested in his brother, W. K. Breeden, who on the 29th-day of December, A. D. 1891, conveyed the same to John L. B-reden, -respondent -in this motion-. Thereafter, that is on -the 2-5th day of March, A. D‘. 190-3, a suit on the equity side of the Court of Common Pleas for Marlboro County was instituted by Du-cy Charles Pearson, by her guardian *ad litem,*against -tire other heirs-at-lawi of -Charles T. Pearson and John D. Breeden as party in- possession, for partition o-f this tract of land. John D. Breeden in his answer set up exclusive title in himself under 'the sale of the estate of C. T. Pearson -and- the chain of conveyance above set forth, and- also', by Way of plea in -bar, -the proceedings, judgment -and s-ale of this land in the suit to marshall the assets of the estate of Chlarles T. Pearson; and pending this suit, to wit, on 30th May, A. D. 190‘5, the infant defendants, having become of -agie, made a motion to open the judgment and-set aside the sale, alleging 'the Court was without jurisdiction to render the -above decree on- the ground's: *first,*that the proceeding was heard outside -the county and at chambers, contrary to law; second, that the guardian *ad litem of*the infant defendants was- appointed by the clerk of the Court, which! appointment the clerk bad no power to *305make; *third,*that they were injured and deprived of their rights in the above proceedings in that the deed above construed to give a fee conditional to Charles T. Pearson gave him only a life estate and they .are noW entitled to the fee in remainder; and that the premises were sold 'far below' their real value.”

Judge Memminger refused tthe mioition in a formal order. From' the order refusing this motion the defendants, John F. Pearson, James Pearson, Annie. May Pearson and Lucy Pearson, now appeal' to this Court.

The questions first to be determined are: (1) Was a guardian *ad litem*appointed for the infant defendants in accordance with law, and (2) did Judge 'Cothran have jurisdiction to hear and determine .the cause when he undertook to do so.

1 The infant defendants Were properly served and the appointment of a guardian *ad litem*was made on the petition of their mother with whom thley resided. It is true their mlother was plaintiff in the cause and the 'children were defendants, but an inspection of the complaint shows that, so far from there being any conflict of interest, the mother was really alleging the land to be the property of the children and not subject to the debts of her husband.' The original appointment of T. I. Rogers as guardian *ad litem*under this service of ’the infants and petition of the mother wias improperly made by the clerk, who was not authorized 'by law to. make .the appointment, but on 6th of May, 18 &5, before the cause Was heard, Judge Hudson made an order confirming the 'appointment. This confirmation of an irregular appointment was equivalent to an appointment by Judge Hudson under the petition of Mrs. Pearson. 'There was, .therefore, no defect whatever in the appointment of the guardian *ad litem.*

*306
      *2*
      **
      *305The jurisdictional question is -less simple but it may be made equally clear. The contentions of respondent are (1) that the cause was heard in open court at Bennettsville by *306•the Court of Common Pleas for Marlboro County, and (2) that if it be considered heard at chambers in Darlington, as appellants' contend, that it was so heard by all parties, including the guardian *ad litem.*Since the cause wlas on the docket of the Court of 'Common Pleas for Marlboro County-at Ithe September 18-86 term', and’ Judge Cbth-ran, who presided at that term, afterwards- filed a decree therein, the legal presumption is that there was a hearing according to law, resulting in the decree. *Counts*v. *Wilson,*45 S. C., 571, 23 S. E., 942; *Clemson*v. *Pickens,*42 S. C., 512, 20 S. E., 401; *Chafee*v. *Postal Co.,*35 S. C., 372, 14 S. E., 764; *Harvey*v. *Tyler, 2*Wall., 328, 17 L. Ed., 871.

The principle is thus se!t forth -in *Vorhees*v. *Jackson,*10 Peters, 449, 9 L. Ed., 447, 471: “There isi no principle of law better settled than that every act of a court of competent jurisdiction -shall be presumed to- have been -rightly done, until the contrary appears; this rule applies- -a'si well to every judgment or -decree rendered in the various stagies of their proceedings, from their initiation to their completion, as to their adjudication that the plaintiff *has*a right of action. Every matter adjudicated becomes a pant of their record, which thenceforth proves itself without -referring to the evidence on which it has- been adjudged.” 'In his work on judgments, page 329, Black formluillates the rule thus:: “The judgment of a domestic count having general) and superior jurisdiction, is always toi be presumied regular and valid and founded upon jurisdiction properly and duly acquired, until the contrary is definitely made to appear in some permissible manner.”

To rebut this presumption the appellants reify on the docket of the Count and the journal) of the clerk, on both of which appears as' to this cause only tine entry “continued,” without any reference to a hearing, -and on .an agreement found in the judgment roil that the cause might -be -heard at chambers, signed by the attorneys- for all the adult parties but not by Mr. Rogers-, the g-uardian *ad litem.*Inasmuch as importance was attached toi this) paper, it is set out in ful: “We, *307the undersigned attorneys representing all the parties' ini the above stated. case hereby consent that the .above stated ‘case may be heard at chambers by his Honor, Judge C'olthran, and any decree necessary may be made by bam, arid that the case was called at the regular term of the Court of Marlboro County in September last and was left open subject to be heard if 'all the attorneys consented. 23d October, 1886.”

The remark “continued” dbes not imply the 'case was: not heard, because if it had been heard and the decree of sale then and there mad-e a continuance would have been necessary nevertheless., for it would have remained for the Court to consider and pass upon the clerk’s report of the sale at some future term. The miere absence from the docket and from the dlerk’s. journal of any memorandum of the hearing is not such evidence that the case was- not in fact heard as would -be sufficient to rebut the presumption that the decree was made after a regular trial of the cause. The presumption is that the trial and all other proceedings leading up to a decree was had according to law' 'without the record affirmatively showing the irregularity olf procedure. To sustain an attack on the jurisdiction of a court of general jurisdiction or on the legality of its proceedings, it is the lack of jurisdiction or illegal action of itha Court that must appear affirmatively from the record. *Clemson*v. *Pickens, supra; Harvey*v. *Tyler, supra; Vorhees*v. *Jackson, supra.*

The fact that an agreement to try the cause at chambers was found among the papers in the judgment roll, signed by all the counsel except the guardian *ad litem,*does not tend to show hat the cause was actually heard at chambers. The presumption is that a Circuit Judge does his duty and, therefore, in this case, it is to be presumed Judge Ooithlran would have refused to hear the case, except in open court, without the consent of -the guardian *ad litem*and all the other parties. Judging the issue here made by the record and disregarding all other evidence, the appellants have failed to show ithie cause was heard at chambers -and riot in open court.

*308The appellant’s case is not strengthened even if 'the parol evidence is considered'. The affidavit of Mr. McColl, one of the counsel for the plaintiff, mptiber of appellants, was to the effect that the cause was 'called in openi court, the pleadings read! and extended' 'argument made by Judge Townsend on behalf of creditors in support of ‘the construction of the deeds which, would give the debtor, Pearson, such a title as Would enable the Court to order the land solid for the payment of hi® debts; that Mr. T. I. Rogers, an attorney of the Court, who was guardian *ad litem,*at the conaDusion of Judge Townsend's argument asked for and obtained further time to submit his argument; that the next day, the Court unexpectedly adjourned without hearing, the argument of Mr. Rogers. In his -affidavit Mr. MeCol‘1 says he has no recollection as to the agreement to hear the. cau-se at chambers. Judge Townsend’s affidavit does not vary from Mr. Mc-Ooll’s, except that it therein stated the agreement for the hearing at chamjbers was drawn by him and the failure of Mr. Rogers to sign in pursuance of a verbal agreement was due to inadvertance. The affidavit of Mr. McLaurin, Judge Townsend's associate counsel, is toi the same 'effect except that it malees no reference to -the written agreement for a hearing at chambers. 'Tire affidavit oif Mr. Rogers; the guardian *ad litem,*was that he had no recollection of being in the courthouse 'when the case was -called; that during the sitting of the Court or soon after it adjourned, at the instance of some 'Counsel in the cause, he agreed to gp to Dlarlington and! argue the case in behalf of 'the infant defendants', and, subsequently did go to Darlington and argue the construction of the deed's 'before Judge Cothran.

3 4 If the recollection of Messrs. Townsend and McDaurin is taken as a correct statement of the facts, it is manifest the case must be regarded heard in open court in Benmettsville, with the privilege allowed as a matter of grace to- the guardian *ad litem*to submit further argumlent at chambers. *Lorick*v. *Motley,*69 S. C., 567, 48 S. E., 614. But if these affidavits be excluded, and consideration *309be given only -to the recollection of Mr. Rogers in the matter, as stated in his affidavit, there is ©till no adequate -ground to s'et aside the judgment. From this affidavit it dearly appears -that Mr. Rogers, 'as guardian *ad litem,*not only consented to hear the cause at -chamber© at Darlington, but in pursuance -of his consent went forward -and participated in the hearing. Neither -Section 144 of Code of Procedure, which allows the trial out of the court where the cause is situated by consent of 'the parties, nor Section 27-3'6 of Civil •Code, which allows the trial at chambers -by consent of t’he parties, requires the consent to be in writing. But Rude 14 of the Circuit -Court provides: “No -agreement or consent between the parties, or their attorneys, in respect to; the proceedings in a -cause -shall be binding, unless- the -sarnie shall have been reduced to the farm -of an order -by consent and entered; or unless the evidence -shall- be in writing, subscribed by the party against whom sam|e shall -be alleged, or iby his attorney -or counsel; or unless- -made in open- court and noted by the -presiding judge or the stenographer on his minutes by the direction of the presiding judge.”' Under this rule the Court -w-il-l not hold a- party -or his counsel bound toi db or abstain from- doing anything" in pursuance of an agreement not shown to hav-e been made -in accordance with the rule. But that is -a very different -thing from uprooting a judgment which has -resulted! from an unwritten -agreement to try a case -at -chambers, when- the agreement was actually carried into -effect by the trial. 'As to this, -consent to try the cause at chambers the statute gave to the guardian *ad litem*the same power to bind the infant that the adult parties had to bind themselves. The mile of Court was adopted to prevent disputes as to the -existence and terms of agreements, and it is generally held such rules have no application when the agreement is admitted or where it has been carried into effect. *Almeroth*v. *Bertram Candy Co.*(Mo.), 76 S. W., 701; *McLauglin*v. *Claussen*(Cal.), 48 Pac., 487; *Mut. Life Ins. Co.*v. *O’Donnel*(N. Y.), 40 N. E., 787.

*310Therefore, 'whether we look at the record alone or consider it in connection, with the affidavits, the appellants were hound by the decree of Judge Cothran- adjudging -and ordering the sale of the lands for the payment of the debts of 'Charles T. Pearson.

The judgment of this Court is>, that the judgment of the Circuit Court be affirmed.