The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1881-03-31
PREME COURT DECISIONS.
8rted for The Clarion by L. Brame, Attor-
ney-at-Law, Jackson, Miss.
OCTOBER TERM, 1880.
WILLIAM RULE


ppeaI from the Circuit Court of vii
On County, Hon J. b. Chrisman, Judge
b the 9th day Of February 1857, David
Dickson, as guardian Of Elizabeth and
ily BRYANT, filed a petition in the Probate
rt of Wilkinson county for sale of GER
valuable lands in which the wards had
Interest upon the ground that the same
bid not be divided in kind without serious
to the heirs" The lands had belonged
Lewis H. Bryant, and, upon his death,
descended to the said wards and l..
le Bryant, his children.
Adele and her mother and guardian,
IL was the widow Of Lewis II. Bryant,
te summoned as defendants, but no cita-
Ill was issued for Elizabeth and Emily,
no guardian all Htem was appointed for
in.
1 the May term, 1857, a decree of sale was
bred under which the land was sold by a
missioner. and at the July term, 1855, the
was confirmed. A deed was made to
Npurchaser, who shortly afterwards con
81 the land to his sister, the said widow
Lewis II. Bryant, deceased, and on the
F |pf November 1860, she conveyed to Will
lib Rule. The widows dover was never
tted. She still survives.
a the 23I Of September, 1875, this ac-
Of ejectment was commenced by
ktbeth, Emily and l.. Adele, children o f
bis II. Bryant, deceased, to recover Of
D. possession Of the lands
In March, 1878, the lands were sold to
4 State for the taxes of 1877, and in
.fil, 1879, the Auditor conveyed the same
pne Alright.
Dr. the trial the defendant relied on the
b under the probate court proceedings,
b upon the further fact that plaintiffs had
title because of the purchase of Alright
ln the State He also insisted that he
entitled to hold possession by reason of
conveyance from the widow, who was in
session at the time of conveying to him,
b whose dover had never been allotted
her.
Trial by Jury was waived. The facts were
omitted to the Judge, who at the April
lm, 1886, gave judgment for plaintiffs.
The Judge delivered an exhaustive writ
opinion, showing that the validity of the
Dbate sale was not to be tested by the pro-
Bions of the Code of 1857 which went into
ect November, 1857, but by former stat
rs requiring "each claimant" to be cited
at therefore, the case was to be distin-
ished from Burrus q. Barrps, 56 Miss, 90;
at the decree of sale was void because
izabeth and Emily, minor wards of said
ckson, were not cited that the require
int as to the citation of these wards was
I dispensed with by reason of the fact
at their guardian was the petitioner. The
lie being void as to these two parties, it
As held to be void altogether. 1t was also
cided that the other grounds of defense
ere not good. Defendant appealed.
The opinion of the Supreme Court is given
full.
AMPBELL, J.
The decree of the Probate Court, made on
e "a of March, 1857, for the sale of the
nd, was void as to Elizabeth and Emily
ryant. the wards of Dickson, on whose
)plication the sale was ordered without
ting them to appear. The 18th section of
An act to amend the probate laws of the
late, and for other purposes" approved
arch l, 1904, Session Acts, 60, required
iii persons interested, residing in the
ate to be cited +" Re when
ten an application was made.
The learned Judge below rightly conclu-
81 that Burns q. Burrus, j6 Miss, 90, had
ference solely to the provisions of the
ode of 1857. In johnson q. Cooper, 56
liss., COS, the minors were duly cited. In
lis cause they were not cited, as the law
'quired, For was a guardian al Item APP
ointed for them.
The decree for sale being void as to some
the parties, was void as to all, according
J Hamilton q. Lockhart, Al Miss, $50, the
ply case in which such a decree
as been held void, when attack
collaterally, and which ignored
le manifest distinction between judgments
law, which are entire, and DEGREES, which
-e not, but which we are not disposed now
} disturb. 1t is not To be understood from
lr unwi.lingness to override the case cited,
lat we will follow it in any other cases
esides DEGREES for sales in probate proceed
lgs.
The defendant below, being in possession
the land, should not have permitted it to
e sold for taxes, and was rightfully denied
lie bereht OF the outstanding tax title in
mother as a shield to his possession. He
ould not have purchased at the sale for
lxes, SO as to hold the land against the
laintitis, and being precluded from purchas-
lg himself, he could not claim any advan-
lge from the purchase by another.
The defendant could not defend the action
nder the. right of the widow of Bryant as
oweress, In view of the doctrine settled IN
MS State, that her right is personal to her
nd not assignable.
Judgment affirmed.
H. 5. Yan-Eaton and D. c. Bramlett, for
ppellant
L. V. holland and Frank Johnston, contra.
To be reported.
NoTE.-ln this case the effect of 21T3,
ode 1871, was not discussed. As the sale
'as made by commissioner, and not by an
executor or guardian" per-
laps that section had no application.