The clarion. [volume] (Jackson, Miss.) 1883-1888, 1884-11-26
SUPREME COURT CASES.
Reported for The Clarion. bv X. \. Parker
AtsornsY-si-Lsw, Jackson, Miss
ocrOBER rERM-1ss4.
ABxER c. TATE, EFT Al
f T. BUSH. JR., ct AL,

ABNER G. TATE, EFT Al
E. I. BUSH, JR., ST AL,
From the Chancery Court of Noxubee
County. F. A. Critz, Chancellor.
Jurisdiction of Chanoery Court as to sale
Of land Of infaat and non coBlpoS MENUS
Irregularities al Judicial sale. Lien under
Judicial safe.
COOPER, J.
In 1859, the Chancery Court of Noxu-
bee county, on bill filed by Walter ).
Tate. a minor, non compos laeIltis, with
ont guardian, by his next friend, decreed
A sale of certain lands for partition be-
tween the complainant and his sister.
The decree was entered on pro oofycSo'
without proof, and directed the sale to
be made on q credit of one and two
wears, but did not provide to whom the
bonds should be made payable. At the
next term of the Court, the commits
sioner reported that the land had been
sold, aud that the purchaser had exc
cuted two bonds, payable TO the commits
| sioner. each for one-half of the puT'
| chase money, and due respectively IL
one aud two years. This report was
confirmed, and the commissioner was
directed to make conveyance to the pur
chaser, which was done, and the pur
chaser went into posse sion. The bill II
this case seeks to avoid the sale and To-
an account of rents and profits, or, i
this cannot be done, then to subject thu
land to the payment of the purchase mon
ey evidenced by the bonds given by tn
purchaser, on the ground that they hay'
never been paid. A demurrer to tn
bill was sustained, and complainants ap
pealed.
In Duncan q. Nilsson, A Miss, it wa
held that a Chancery Court had juris
diction to decree a sale of lands for par
tition, upon the application of the guar
dian of an infant otenant, notwIth
standing the statutory provisions 70
the sale by the probate court of land
in which infants were interested. w
are unable to see why the decision shout,
be otherwise when the proceedings ar
instituted by the next friend instead o
the guardian.
The lunacy Of the infant, which wa
not shown in the original record, doe
not affect the decree. Freeman on JpdG
ments, 2 152; SheBord on LuRacy, 800
Saunders q. Mitchell, 81 Miss, 321.
As to the alleged irregularities attend
ing the sale, the question is nc
whether the matters urged const
tuted error, but whether because c
them, the Court had not power to deere
confirmation. For the correction of a
mere errors, the remedy of the part
was by appeal from the decree. A
this course was not pursued, nothin
less than a defect of jurisdiction ca
now be invoked. If it be admitted tina
under the Code of 1857, a legal sale coul
not have been made except at the couI
house, (the decree having been silent q
: to the time and place of sale,) it yet r,
mains true, in the absence of any stat,
ment in the report on the subject, thG
the time, manner and place of sale wei
necessarily involved in the hearing c
the application to confirm; and the pr,
5 sumption must be INDUCED, even o
: direct appeal, that the decree wa
founded upon sufficient evidenc,
Georges Digest, PIP. 373 and ABS. The pui
: chase money was secured by bond
equal to, and not double its amount, q
5 required by the Code of 1867; but W
/ think the statute is not to be so col
strued that all sales not made in striC
conformity thereto are void for the Ell
6 sought to be attained does not fail b
reason of this irregularity. The failur
? of the commissioner to return the bond
into Court cannot be visited on the pul
chaser. See Nesb1 q. Cunningham,
Miss, of such objections are insufficient
!, on direct appeal, much less can the
prevail in a collateral attack.
The remaining enquiry is, whethe
lien exists upon the land which ma
now be enforced. We think not TIL
statute in regard to sales by probu
; court of lands in which an infant wa
interested, directed that both persona
security and a mortgage on the Ian
r sold should be taken to secure the pun
chase money; while in sales made b
the chancery court only personal secu
] rity was required. 7ooley q. GridleH
] S. and NJ, Ferguson =. Shepard, IS Miss
Campbell a. Mcleod, SO Miss, and othe
{ cases cited, were all cases in whic
; either no other security was taken, O
where the order or the intention Of tn
parties was that the land should
8 charged with the payment of the Pun
chase-money. But in the case befor
us the law provided an Independent
; collateral security, and there is no pre-
vision that lien should be retained
These facts, in a sale by contract be
tween the parties, would show a waive
of the lien by implication. 1t is onl,
by analogy to cases of private contrac
that the vendors lien can be invoked
Affirmed.
Rives & Rives, George G. billiard
and Calhoun & Green, for appellants.
Jarnagin & Boyle and L. Brame, TO
appellees.