The comet. [volume] (Jackson, Miss.) 1877-1882, 1879-04-26
SUPREME COURT DECISIONS.
Reported Weekly by Jenkins
IL Little, Attorneys at Law.
MONDAY, april 81, 1879.

w. D. JOHNSON,
E2SG5] VS..
j. A. COOPER, ct al.
Error to Circuit Court Holmes county,
Hon. VIM. Cothran, Judge.
Ejectment brought in 1869, by the heirs
of Cooper, who died in 1856, claiming that
land sold under Probate decree to pay debts
was void. The property was all devised to
the widow and children, all of whom were
minors save one. The widow and children
occupied land in controversy as home
stead at and before its sale.
guardian ad Item was appointed for
the minors before service of process on
them.
The sale was not reported at the succeed
ing term, and was confirmed without notice
to the hcirs.j
CAMPBELL, j.,
Held
l. The fact that the land, or some part
of it was exempt from execution in the life
time of the testator, did not render the
order OF the Probate Court to sell void.
Prior the Act of October 20, 1852, real ss-
tate exempt from execution was not longer
exempt after the death of the owner, but by
that Act all property exempt from execu-
ton "upon the death of the husband, dying
51atestnte,' was made to descend to the widow
and children as therein provided. In this
case the husband did not die intestate, and
his property was not affected by the Act
cited.
9. Until the Act of 1916, Hutchinson's
Code, no statute of this State required the |
appointment of guardian ad Item in any
case in the Probate Courts. That statute |
specified under what circumstances the
appointment of such guardian should be
necessary. The provision in Hutchin-
sons Code, p. 761-unrepealed when this |
proceeding took place-provides that in
chancery suits for the appointment of guar
dian 0d htena to any infant, ''whether serv-
ed with process or not" etc. The Act was
passed with due regard to the then existing
law, and the legislative understanding was
that in those cases in which it was neces-
sary to have guardian Gd Item, he might
be appointed before service of process on
the infants. By rule % of Superior Court
of Chancery, it is declared mo order APP
pointing guardian d6 6ten1 to defend in>
fants will be made until after the return
day of the process executed etc., but that
was mere announcement of the Chancel-
or, aud did not make void the statute on
he subject, which provided that he could.
The Probate Court was bound by the law
governing Chancery Courts on this subject,
md its appointment of guardian dd Item
before service of process was not void. De- .
,isions holding the contrary doctrine were
BASED on the rule, overlooking the statute
IN the subject.
3. The fact that the sale made Novem~
,er 81, 1856, was not reported to the Court c
t its next term in December, but was made n
nd confirmed at the January term, 1857, i,
without notice to the heirs, did not render
he sale void. Confirmation of a sale by I
he Court is but a Specification of its APP
,roval. Until confirmation the sale is not
ompletc, i. e.. it is in teri, and subject to
he control of the Court, but it Is not void. :
t il q sale which has conferred rights on /
he purchaser, who may apply to the Court o
or its confirmation, and who is entitled to c
ave it confirmed, unless valid reasons
gainst it exist. 1t cannot be said that the II
ale is void simply because the approval of o
be Court has been expressed at one time 1
ather than another. The most that can n
q said is that the sale is still IN tieri, so far
S to entitle the parties in interest to move .
be Court to set it aside for reasons which
ney might have urged at the time when it
-as confirmed. "A confirmation by the
arties themselves, by their own acts is as
aid as if by the Court" There was a
aid order of sale, confirmed by the Court, 4
ne purchaser paid the price, received
eed, went into possession, and he and
lose holding under him have held ever
YER since. The sale must be held to have
cen confirmed by the acts of the parties,
nd cannot now be questioned in this col- 4
literal manner. Judgment reversed, and
ew trial awarded.