The comet. [volume] (Jackson, Miss.) 1877-1882, 1879-11-22

vs..
@. S. SIMMONS, ct al.
Error to the Circuit Court OF Holmes
county, Hon. -----, Judge.
This, an action of ejectment for the re-
ooyery of valuable plantation in Holmes
county, and resulted in verdict and judg'
ment for the plaintiff in the Court below,
from which the defendant sued out wri'
of error.
Roth parties claimed under Samuel b.
Simmons The plaintiffs, by introducing
n deed from him to Crosby s. Skidmore,
dated Nov. IA, 1859, by which the planta-
ton in controversy, consisting OF lleo
acres was conveyed to said Skidmore FOR
the sum of 1854 200, which appears on the
face of the deed to be payable in annual
installments the last one falling due Janu-
arv LIST. 1869. In the decd was an express
reservation of a lien on the land to secure
the payment of the purchase money.
Plaintiff then introduced deed from said
Crosby S. skidmore, to James Simmons
dated also Nov. 14th, 1859, by which $50
acres of the tract described by land office
numbers, was conveyed to said James SIM
mons for the consideration of 10000,
which was acknowledged in the deed to
have been paid G. s. Simmons, one OF
plaintiffs below, then testified that he and
his co-plaintiff were the children and sole
heirs of said James Simmons, the grantee
in the last mentioned deed who died IN
possession of the land in question, in the
wear 1862, James Simmons was also
child of Samuel B. Simmons, the grantee
in the first named deed; that plaintiffs were
also the children and sole heirs OF Ann
Augusta Skidmore, their mother, who was
child and one of the heirs of Crosby 5.
Skidmore, the grantee in said first named
deed and that said Ann Augusta died
in 1861.
Plaintiff claimed the $50 acres embraced
in The deed of their maternal grandfather,
said Crosby S. Skidmore, as heirs OF their
father, James s. Simmons, who, as before
shown, had received deed therefor from
said Skdmore, and they claimed an undi-
vi,led one>fourth interest in the remaining
43G acres as heirs of their mother who was
one of the heirs of G. s. Skidmore
Defendant below deraigned title as fol-
lows: He offered in evidence record of
certain proceedings in the Chancery Court
of Holmes county, in which the executor
of Samuel B. Simmons, (grsntor in the
deed to Crosby s. Skidmore) obtained n
decree against the executor and heirs OF
said G. S. Skidmore, condemning the
whole 1166 acres to be sold for the unpaid
purchase money due Samuel B. Simmons.
This record shows that sale was made in
pursuance of the decree, and that the eight
heirs of said Samuel B. Simmons were the
purchasers, each heir to take an undivided
interest in the land according to his right
in the estate of said Samuel B., and the
amount of each heir was specified in the
deed The plaintiffs below were mentioned
in the deed as part of the grantees, and
as heirs of said Samuel B., (the grand
father entitled together to one-eighth part
of the land. Defendant then offered in
evidence record OF certain other proceed
ings of the Chancery Court of Holmes
county, in which three of the heirs of
Samuel B. Simmons procured a decree
against the other heirs (ncluding plaintiffs
below for a sale of the whole tract, 1166
acres, for partition. The decree was dated
August 80, 1870, and sale was made under
it in November following, and afterwards
In 1871, confirmed by the Court. At this
sale, John G., Cocks, the father of defen
dant below became the purchaser at the
price of $1s,172.
1t is urged that the decree in the suit to
enforce the vendors lien is void, because it
does not appear from the record that the
plaintiffs below, who were minors, were
made parties to the suit. The summons
appears to have been issued against these
plaintiffs, who are stated in it to be in
fants, having one Carraway as their guar
dian, who is also stated in the bill to be
their guardian. The summons was return
ed executed on said guardian, but the
return was silent as to the infants.
1t was also shown by the answer of the
defendants in that suit, that the person
named as guardian was not in fact guar
dian. The Court, in the order appointing
a guardian dd Item for the minors, makes
this recital. cit appearing to the satisfac
lion of the Court that subpoena or sum-
mons has been duly executed upon the
minor defendants in this cause" and then
proceeds to name the infants, among whom
ire the plaintiffs below, and thereupon j.
s. Hoskins is appointed guardian ad Item,
md ordered to defend for the infants.
Secondly, it is urged against the pro-
,eedings in the suit to enforce the vendors
len, that the bill was against the plaintiffs
below solely in their character as heirs of
Crosby s. Skidmore, and that no notice was
aiken of the deed for 700 acres of land
made by said Crosby to James s. Simmons,
heir father, and that their rights under
hat deed were not affected by the decree
md sale in that suit.
Thirdly, it is urged that the decree in
he partition suit ia void because the sums
mons vas served on plaintiffs, who were
hen infants, by service on them alone, the
record showing they had no guardian or
ather, but not showing they had no
mother.
Fourthly, it is urged that the decree of
he Chancery Court in the partition pro-
eeding is void for want of jurisdiction on
he subject matter.
Filthy, it is urged against both DEGREES,
hat the plaintiffs were infants, and inca
able of becoming purchasers under the
ale made under the decree enforcing the
endof's lien, and that they lost by that sale
ONE of their RIGHTS az heirs of n q gt;d ! ,