Opinion
No. 33445.
March 20, 1939.
1. GUARDIAN AND WARD.
A minor cannot be appointed guardian of another minor.
2. GUARDIAN AND WARD. Insane persons.
A "guardian" is a person appointed by the court to guard the interests of another person who, by reason of infancy, lunacy, or the like, is incapable of guarding his own interests without aid.
3. ESTOPPEL.
The acts of a minor as guardian do not irrevocably bind her as an individual and as to her individual property therein.
4. INFANTS.
A minor may not prosecute a judicial proceeding solely in his own name and acting alone, but must sue by next friend unless expressly authorized by statute to proceed otherwise.
5. INFANTS.
A court may not in its discretion dispense with requirement that a minor sue by next friend when it is expressly and plainly imposed by statute in a particular proceeding, particularly when the estate and interests of minors is seriously concerned as in partition of their real property (Laws 1918, chapter 130).
6. INFANTS.
Statutory provision that a minor may sue in partition by next friend imposes an exclusive and indispensable requirement with respect to necessity that suit be by next friend, notwithstanding that in exercise of general common-law or equity jurisdiction, the fact that a minor is not represented by next friend is a procedural matter and not one of substance, that a partition proceeding is of equitable origin, and that in absence of statutory regulation courts will exercise their powers according to ordinary rules (Laws 1918, chapter 130).
7. COURTS.
Where instead of leaving a particular matter to be proceeded with under ordinary common-law rules in law or in equity, the particular manner in which jurisdiction may be exercised is expressly prescribed, a substantial compliance with the mode prescribed is, as to its protective features, mandatory, rather than directory and dispensable.
8. INFANTS.
Minors are not competent to waive statutory requirements, enacted for their protection, with respect to manner in which jurisdiction may be exercised.
9. INFANTS.
Statutory requirement that a minor sue by next friend requires that next friend be an adult (Laws 1918, chapter 130).
10. INFANTS.
A partition proceeding wherein minors were represented as next friend by another minor was void as to all parties, notwithstanding minor's disability had purportedly been specially removed for purpose of empowering her to act with reference to her own property (Laws 1918, chapter 130).
11. JUDGMENT.
When decree of court of general jurisdiction is questioned on account of want of jurisdiction of parties, and record is silent as to point on which attack is based, conclusive presumption arises, as against collateral attack, that court found that necessary jurisdictional facts were present, but presumption disappears when record shows contrary of what presumption would import into decree and collateral attack is then permissible.
12. INFANTS.
A decree in partition proceeding wherein petition revealed that minors were represented as next friend by another minor was subject to collateral attack (Laws 1918, chapter 130).
13. INFANTS.
Partition proceeding which was invalid because minors were represented therein as next friend by another minor was not ratified by subsequent partition in pais of the land set aside to the minors, nor were minors estopped from asserting invalidity (Laws 1918, chapter 130).
14. PARTITION.
Heirs who held in severalty by a division in pais among themselves land set aside to them in abortive judicial partition could not renounce the partition except by restoring the status quo ante.
15. PARTITION.
The vendee of land allotted to widow in abortive partition proceeding had no legal interest as tenant in common or as assignee in lands allotted to children.
16. JUDGMENT.
In suit to set aside void partition proceeding, allegations and prayer of cross-bill which averred that proceedings were valid, or if not, that it had been ratified, or if not ratified that cross-complainant was owner of an undivided interest in entire property, or was entitled to general relief was sufficient to require action by court on alternate contention of cross-complainant as to manner in which its interest should be adjusted (Code 1930, sections 2922, 2923).
17. PARTITION.
A court has statutory power in partition proceedings to adjudicate and adjust all the equities between the parties, and to that end a cross-bill, dealt with as in other suits in chancery, is available (Code 1930, sections 2922, 2923).
18. PARTITION.
Where there has been an ostensible partition by judicial decree, followed by further partition in pais, and the parties have each taken possession of their assigned parts as if in severalty and the partitions fail because minors were represented therein as next friend by another minor, and one of cotenants has conveyed his assigned part by metes and bounds, the court should so order partition, when it can be done in kind, as to allot to vendee particular part which he has purchased from ostensible holder in severalty, resorting to owelty against conveyed portion or deduction therefrom in kind if necessary to make an equal division (Laws 1918, chapter 130).
19. PARTITION.
Where there has been an ostensible partition by judicial decree followed by a further partition in pais, and the parties have each taken possession of their assigned parts as if in severalty, but the partitions fail and some of tenants in common disaffirm the partitions after one of cotenants has conveyed his assigned part by metes and bounds, the court should allow all lands to be brought into proceeding, not for purpose of permitting vendee of tenant in common to take any of land not included in vendee's deed in severalty, but to determine whether whole land can be divided so as to allot vendee the land conveyed to him and at same time give to original tenants their just share of original whole.
20. EQUITY.
The maxim that he who seeks the aid of equity shall do equity is applicable to partition proceedings.
21. EQUITY.
A party should not object to or complain of that which will do him no harm but will do the right to and for an opposite party.
APPEAL from the chancery court of Sunflower county; HON. J.L. WILLIAMS, Chancellor.
Moody Davis and Gordon L. Lyon, all of Indianola, for appellants.
Where it is true the chancery court, in guardianship and partition proceedings, exercises powers granted by the statute, yet, in the exercise of such powers, the court acts as a court of general jurisdiction and not as a court of special and limited jurisdiction.
Ames v. Williams, 17 So. 762; In re Heard's Guardianship, 163 So. 685; Paddock v. Shields, 57 Miss. 340; Sweatman v. Dean, 38 So. 231; Broom v. Board of Supervisors, 158 So. 344.
When a court of general jurisdiction has jurisdiction of the subject matter and the parties, though some are minors, a consent decree is as valid and binding on the minors as if they were adults.
Thompson v. Maxwell Land Grant Ry. Co., 42 L.Ed. 539.
The distinctive disability of an infant is in relation to his contracts, affecting his personal liability and his property, and hence the law gives him the right to avoid contracts, made during infancy. The other party to the contract is bound so long as the infant adheres to it. Inasmuch as the disability is for the protection of the infant and his property. "It has been held that an infant may be an agent for another; and that his contracts, as such, if otherwise valid, will bind his principal."
Talbot v. Bowen, 10 Am. Dec. 747; 21 R.C.L. 819.
The office of a guardian is a ministerial office and any discretion required therein is not left to the guardian but to the court. It is a well established rule that a guardian is merely an agent or an officer of the court and in all cases, and, especially is it true in the case at bar, the minor in acting as a guardian is acting for the court and as an officer of the court.
Harrison v. Harrison, L.R.A. 1916E 854; 14 R.C.L. 221, sec. 8.
Our statute relative to the qualifications of a guardian does not prohibit a minor from being a guardian.
Section 1868, Code of 1930 (Hutchins Dig. 504, section 125); Farrer v. Clark, 29 Miss. 195; Wimberly v. Boland, 16 So. 905.
14 R.C.L. 221, sec. 8, holds that "an infant may hold such public offices as are ministerial and call only for the exercise of executive skill and diligence."
Wimberly v. Boland, 16 So. 905.
The fact that Betty Eastland was a minor at the time she was appointed guardian is not disclosed by the record in Cause No. 4415. Hence, if it be conceded, which it is not, that the court was without jurisdiction to appoint Betty Eastland, a minor, as guardian, can the lack of jurisdiction be shown by evidence aliunde the record or by collateral attack? The decisions of the Supreme Court of this state answering this proposition in the negative are numerous and in harmony.
Ames v. Williams, 17 So. 762; Cotton v. Harlan, 87 So. 152; In re Heard's Guardianship, 163 So. 685.
With reference to the construction of judgments and decrees in general it is a well settled rule that, if possible, that construction which will support the judgment or decree will be adopted rather than one which will destroy it. All presumptions are in support of the judgment and, as in the case at bar, a construction adopted or acquiesced in by the parties will not be changed without strong reasons.
34 C.J. 502 and 503, 508 and 509.
As to decrees appointing guardians the law is that the court may in its order of appointment impose reasonable conditions and restrictions on the guardian. This is exactly what was done in the decree appointing Betty Eastland guardian. Whether the restriction or condition was reasonable or not could have no bearing on the case at bar, because, in the first place, such an issue cannot be presented in a collateral attack, and in the second place, if the condition or restriction is unreasonable such would or could not be imposed. Under no conditions would such a restriction or condition render the appointment void.
28 C.J. 1087; Ames v. Williams, 17 So. 762; Cotton v. Harlan, 87 So. 152; In re Heard's Guardianship, 163 So. 685; Wimberly v. Boland, 16 So. 905.
The Supreme Court of this state held in Sweatman v. Dean, 38 So. 231, that a partition proceeding was not subject to collateral attack.
Paddock v. Shields, 57 Miss. 340; Cocks v. Simmons, 57 Miss. 183; Johns v. Harper, 61 Miss. 142; Tate v. Bush, 62 Miss. 145.
It has frequently been held that the representation of the infant plaintiff by a next friend or guardian and, when appointment by the court is necessary, the regularity of such appointment, are matters of procedure and not of substance, and that an objection that the plaintiff is an infant, and sues without next friend, must be made by plea in abatement and is waived by pleading to the merits.
14 R.C.L. 280-281; 31 C.J. 1121-3; McLemore v. Chicago Railroad Co., 58 Miss. 514; Eubanks v. McLeod, 63 So. 226; Eubanks v. McLeod, 69 So. 289.
If several persons entitled to compel a partition may join as complainants, why not all such persons. It is true this proceeding might result in the anomaly of a suit or action in which there was no defendant, and this has been thought a sufficient reason for refusing to entertain it. The reason, being purely technical, seems unworthy of serious consideration, and has been overruled whenever presented for judicial consideration.
30 Cyc. 201; Waugh v. Blumenthal, 28 Mo. 462; Geer v. Geer, 14 S.E. 679; Moor v. Polagge, 41 S.W. 465; Blagge v. Shaw, 41 S.W. 756.
The fact that the proceeding was ex parte cannot be objectionable.
Section 3521, Code 1906 (Sec. 2920 Code 1930); Section 3522 Code of 1906 as amended by Chapter 130, Laws 1918; Sec. 3523, Code 1906; Sec. 3524 Code of 1906 (Section 2925 Code of 1930).
Under the proceedings in the case at bar the minors were represented by their guardian and it was not necessary that they be parties in any other manner.
We respectfully submit that the bill of complaint in this case should have been dismissed and the relief prayed for by the appellants in their cross-bill should have been granted. The appellant Insurance Company, through no fraud or bad faith on its part, has, by relying on the records and solemn judgments and decrees of the court below in Cause No. 4415 (the guardianship matter) and Cause No. 4416 (the partition proceeding) become the purchaser of the 111.17 acre tract of land in controversy. Any effort tending to impeach the proceedings had in those two causes by evidence and facts that do not appear on the face of the record is untenable.
Sanders v. Sorrell, 3 So. 661; Cocks v. Simmons, 57 Miss. 197.
If the minor has in possession any of the consideration received, when he disaffirms his contract, or after he becomes of age, he must return it. By the act of disaffirmance, he loses the right to retain that which has been received, and if he holds on to the consideration, or disposes of it after majority, it will amount to a ratification of his previously voidable contract.
Brantley v. Wolf, 60 Miss. 420.
There is a vast difference between the consideration passing from the minor during minority and after majority. During minority the law affords protection for the reason of inexperience and youth. But after majority, the reason of the law cases, and ratification of a voidable contract results from disposing of the consideration, of an executed contract, after attaining majority.
The doctrine of a court of equity is that the heir who received the price of his real estate, sold by his guardian, cannot hold on to the money and at the same time recover the land on account of some defect in the judicial proceeding under which it was sold.
Douglas v. Bennett, 51 Miss. 680; Gaines v. Kennedy, 53 Miss. 103.
The cross-complainant, the Prudential Insurance Company of America, acquired the title to the land conveyed to Mrs. Pentecost. Therefore, as held in Gaines v. Kennedy, 53 Miss. 103, the equitable estoppel can be availed of by it, as a subsequent vendee.
If, therefore, the deed executed to Mrs. Pentecost wherein the 111.17 acre tract (which is the land described in the bill of complaint is conveyed cannot be disaffirmed by Betty Eastland Gleason, Oliver Eastland, and Woods C. Eastland II, then their interest in that land, on the date the bill of complaint was filed, is vested in the Prudential Insurance Company, the appellant, who has title to that land through Mrs. Pentecost. Hence, when the cause was finally heard below, the Prudential Insurance Company, the appellant, was vested with a four-sixths interest (the interest of Mrs. Pentecost and the above three children) and Viola Eastland Harris and Chester Eastland were each vested with a one-sixth interest. Therefore, even thus far considered, the partition decree, which only allots a one-sixth interest to the appellant, must be reversed.
Voluntary partition which is not binding on all cotenants is not binding on any of them. Such as the effect of a partition by adult heirs which the minor heirs refuse to ratify on coming of age, of an attempted partition by deed signed by persons under desirability without the formalities prescribed by law, or of an attempted partition by deed not executed by all the grantors.
47 C.J. page 280, section 35, page 331, section 154; Freeman, Cotenancy Partition, 2 Ed., sections 419 and 508; 20 R.C.L., page 719, section 5, and page 732, section 14; Deshoug v. Deshoug, 65 A.S.R. 855.
Subject to some exceptions the general rule is well settled that a cotenant cannot enforce a partition of a part only of the property held in cotenancy, leaving the rest undivided, but the entire property must be included in the proceedings for partition. And when only a part of the lands is described in the petition, and defendant may insist that the omitted land be embraced in the suit and in the order of partition.
47 C.J., page 332, section 155; Parker v. Harrison, 63 Miss. 225.
Although there is some authority to the contrary, the well settled rule is that, where one cotenant conveys his interest in the land held in common if the other cotenant desires partition, he not only may but must include all the land held in common in his petition for partition; he will not be permitted to enforce partition of the part conveyed against the grantee of his cotenant leaving the rest of the estate unpartitioned; but, nevertheless, the partition will be made in such a way as to protect, as far as possible, the interests of the grantee in the part of the land conveyed to him. Conversely, the grantee under a deed from one of the cotenants purporting to convey a part of the tract held in common cannot maintain a suit in partition embracing only the part conveyed to him, constituting, as this does, a well recognized exception to the general rule above stated, and the reason for this exeception is based on the universally accepted doctrine that one cotenant cannot, by conveyance of his interest in a portion of the property held in common, prejudice the rights of his cotenants, and that for all purposes of partition, the whole property originally held in common by the cotenants, whether consisting of one or any number of parcels, continues to be a unit — the subject matter of a single action, just as if no change in the ownership of any interest therein had occurred; and in such action, the respective rights of all parties interested, original cotenants, and successors, may be determined.
47 C.J. page 333, sec. 160, page 486, sec. 538, page 371, sec. 246; 14 Am. Jur. 151, sec. 86; Freeman, Cotenancy Partition (2 Ed.), sec. 205; O'Neal v. Cooper, 67 So. 689; Barnes v. Lynch, 21 A.S.R. 470; Benedict v. Torrent, 21 A.S.R. 589; Mee v. Benedict, 39 A.S.R. 543; Bigelow v. Littlefield, 83 Am. Dec. 484; Ferris v. Montgomery Land Imp. Co., 10 So. 607; Thomas Pellow v. Arctic Iron Co., 47 L.R.A. (N.S.) 573; Young v. Edwards, 26 A.S.R. 689.
If practicable and consistent with the rights of the other joint-owners, partition will be so made as to protect a cotenant's alienee of an interest only in a particular part of the common property.
Paddock v. Shields, 57 Miss. 340.
It is true that no specific prayer was made for a partition of the whole of the common property. The reason this was not done was because cross complainant's contention was that the partition of the common property was valid and appellees had no interest in the specific tract claimed by appellant, and prayed that its title be confirmed and quieted, etc. However, cross complainant set forth in its cross bill sufficient facts to entitle it to the special relief under consideration. Such is the very purpose or office of the general prayer, that is, to enable the court to grant the relief which a case warrants if the complainant has mistaken the special relief he seeks, or to enable the court to grant appropriate relief if for any reason it is unable to grant the specific relief asked.
Griffith Chancery Practice, secs. 186 and 187.
Sam L. Gwin, of Greenwood, for appellees.
There is no such thing known to the law of this state as a bona fide purchaser for value, without notice, of the property of an infant, whether the purchase be direct from the infant or from a person or series of persons deriving title from the infant.
Upshaw v. Gibson, 53 Miss. 341; Harding v. Cobb, 47 Miss. 599; Hill v. Anderson, 5 A. M. 216; Cason v. Hubbard, 38 Miss. 35; Brantley v. Wolf, 60 Miss. 420; Conn v. Boutwell, 101 Miss. 353; Watson v. Peebles, 102 Miss. 725, 59 So. 881; Gambrell v. Harper, 113 Miss. 715, 74 So. 623; Mellott v. Love, 152 Miss. 860, 119 So. 913; Hayes v. Federal Land Bank, 162 Miss. 877, 140 So. 340.
There is no such thing as adverse possession of land against an infant, unless the adverse possession had begun before the infant acquired title, which is not the case here.
McLeiter v. Rackely, 148 Miss. 75, 114 So. 129; Hauer v. Davidson, 113 Miss. 696, 74 So. 621; Cratin v. Cratin, 178 Miss. 881, 173, So. 415.
The proceeding for the removal of the disabilities of minority of Betty C. Eastland was not judicial in its character. The relief sought is private in its character, affecting no rights of others.
Marks v. McElroy, 67 Miss. 545, 7 So. 408; Lake v. Perry, 95 Miss. 550, 49 So. 569; Hardy v. Pepper, 120 Miss. 27, 90 So. 181; Dulion v. Folkes, 153 Miss. 91, 120 So. 437; Hayes v. Federal Land Bank, 162 Miss. 887, 140 So. 340; Howard v. McMurchy, 175 Miss. 328, 166 So. 917.
The proposition that any order, judgment or decree of a court, void on its face for lack of jurisdiction of the subject matter thereof, may be disregarded as a nullity or may be attacked and vacated anywhere, in any subsequent proceeding, direct or collateral, is so fundamental that it is not deemed proper to encumber the discussion by citation of authority in support of it.
Ray v. Kelly, 82 Miss. 597, 35 So. 165.
In the absence of that allegation in the petition or application of the residence of the minor in the county where the proceeding is had, the petition was insufficient to, and did not, bring the matter before the Chancellor for consideration. It was no more effective for the purpose for which it may be supposed it was intended than a sheet of blank paper. It did not bring any matter before any court. There was not, through it, any matter presented nor ony court for it to be presented to.
Dulion v. Folkes, 153 Miss. 91, 120 So. 437; Miss. State Highway Dept. v. Haines, 162 Miss. 216, 139 So. 168.
In the absence of the recital in the petition of the proper jurisdictional residence of the minor, the entire proceeding is coram non judice.
Marks v. McElroy, 67 Miss. 545, 7 So. 408; Dulion v. Folkes, 153 Miss. 91, 120 So. 437; Hayes v. Federal Land Bank of New Orleans, La., 162 Miss. 877, 140 So. 340; Howard v. McMurchy, 175 Miss. 328, 166 So. 917; Green v. Adams County, 172 Miss. 573, 161 So. 139.
Jurisdiction of the subject matter cannot be conferred on the court by the consent of the parties, although a minor, like an adult is bound by decrees rendered in courts of record, where the minor is properly before the court; but parties themselves may not confer jurisdictional power upon a court without it, simply by consent.
Switzer v. Benny, 94 Miss. 209, 48 So. 401; Bolivar County v. Coleman, 71 Miss. 832, 15 So. 107; Marks v. McElroy, 67 Miss. 545, 7 So. 408; Dulion v. Folkes, 153 Miss. 91, 120 So. 437; Lake v. Perry, 95 Miss. 550, 49 So. 569; Henderson Molpus Co. v. Gammill, 149 Miss. 576, 115 So. 716.
Another ground upon which the appellees submit that the proceeding for the removal of the disabilities of Betty C. Eastland is void is that two of her nearest kin did not join in the application.
Section 544, Code of 1906; Eastman Gardner Co. v. Leverett, 141 Miss. 96, 106 So. 106; Shelby v. White, 158 Miss. 880, 131 So. 343; Ponder v. Martin, 119 Miss. 156, 80 So. 388.
The proceeding for the removal of the disabilities of minority of Betty C. Eastland being void for several causes and therefore to be disregarded as a nullity and as never having had existence, cannot be made valid or effective by any kind of proof in the case at bar.
Dulion v. Folkes, 153 Miss. 91, 120 So. 437; Ferguson v. Seward, 146 Miss. 613, 111 So. 596; Green v. Adams County, 172 Miss. 573, 161 So. 139; Craft v. DeSoto County, 79 Miss. 618, 31 So. 204; Adams v. First National Bank of Greenwood, 103 Miss. 744, 60 So. 770; Hinton v. Perry County, 84 Miss. 546, 36 So. 567; Aden v. Bd. of Suprs., Issaquena County, 142 Miss. 696, 107 So. 753.
Where a court of general jurisdiction (a court of record), acting within the scope of its ordinary power, renders judgments or decrees, such judgments or decrees will be presumed to be in accordance with its jurisdiction. Courts of limited jurisdiction (courts not of record) are presumed to have no jurisdiction other than that shown to exist. Courts of record, exercising special powers conferred by statute in derogation of the common law, and proceeding according to the statute, and not according to the course of the common law, are, as to their judgments or decrees in such matters, upon the footing of courts not of record.
Marks v. McElroy, 67 Miss. 545, 7 So. 408.
The chancery court in proceedings for removal of disabilities of minority comes within the third class, in which class also is, as has been seen, the jurisdiction of boards of supervisors in matters outside of their constitutional authority and of chancery courts in proceedings for partition of land.
A chancery court of this state which, in the exercise of its general and constitutional jurisdiction, is that court of the most important responsibilities, the greatest dignity, the largest discretion, and the most far reaching conclusiveness of action, is, in proceedings where it derives its authority solely from statute, as in the removal of disabilities of minority, suits for partition and similar proceedings, held to the same accountability in the requirements for the exercise of such authority as a board of supervisors or the board of aldermen in a village of the state.
Ferguson v. Seward, 146 Miss. 613, 111 So. 596; Ferguson v. Wilkinson County, 149 Miss. 628, 115 So. 779; Green v. Adams County, 172 Miss. 573, 161 So. 139; Craft v. DeSoto County, 79 Miss. 618, 31 So. 204.
Under the plain, clear and unambiguous language of the statute prescribing the parties necessary to be united in the ex parte application of a minor, by next friend, for the removal of the disabilities of minority, as it stood in October, 1924, when the proceeding involved in the case at bar occurred, after the substitution of the Amendment of 1918, for the second section of that statute (section 545, Code 1906, Hem. Code 1917, section 302), and its construction accordingly by the Supreme Court in Bazor v. J.J. Newman Lbr. Co., 133 Miss. 538, 97 So. 761, it is clear enough in the light of the decisions of that court that the statutory jurisdictional requirement as to parties rendered it necessary in order that the proceeding might have been valid as to this phase that there should have united in the ex parte application involved in the case at bar the mother, being of the first degree, and one of the minor brothers and sister of Betty C. Eastland, being all of the second degree, rather than her uncle or aunt, being of the third degree, unless the minority of the brothers and sister precluded them from becoming parties to the proceeding, which, since there is no limitation in the statute of the parties to adults and no exclusion of minors from the class of kin necessary to be made parties, it is respectfully submitted was not the case, as has been determined by the Supreme Court of this State in the two decisions to which the attention of this court is now directed.
Eastman Gardner Co. v. Leverett, 141 Miss. 96, 106 So. 106; Theobald v. Deslonge, 93 Miss. 208, 46 So. 712.
The names and places of residence of the kin who united in the application were not stated in the application as required by the statute, but only their respective post office addresses.
Shelby v. White, 158 Miss. 880, 131 So. 343; Ponder v. Martin, 119 Miss. 156, 80 So. 388.
Under section 547 of the Code of 1906, which was the statute in force at the time of the proceeding for the removal of the disabilities of minority of Betty C. Eastland, involved in the case at bar, prescribing the form and scope of the decrees possible to be made in such proceeding, the court was without warrant of law to make other than one of the two decrees therein prescribed, and the decree in question is neither.
Howard v. McMurchy, 175 Miss. 328, 166 So. 917.
Where the language of a judgment or decree is plain and unambiguous, no resort to the pleadings on which it is founded is necessary or permissible for its interpretation. Moreover, the court below had the right to grant all or a part of the prayer of these petitions.
Howard v. McMurchy, 175 Miss. 328, 166 So. 917.
Unless the Prudential Insurance Company in passing upon the loan to Mrs. Viola Pentecost on the security of this land was actuated by an overwhelming desire to put to earnest interest its vast surplus of funds and deliberately decided to take a chance on the personal credit of Mrs. Pentecost, who is not shown to have been insolvent or unable to pay her debts or unworthy of credit to the amount of the loan in the absence of security, or to take a chance that, owing to the relationship and tender ages of the owners of the five-sixths interest in the land, there would be nothing said about the title and no disturbance raised, at least for some years and until after the loan might be expected to be repaid, and deliberately made the loan under those conditions, then it must be said that in making the loan, with the fatal defects staring it in the face from the pages of the records of the title accepted as security for the loan, the Prudential Insurance Company is chargeable with gross negligence, if it failed to observe such defects; or if it did observe them and failed to heed the warnings repeatedly reiterated by the highest court of this state over a period extending from Hill v. Anderson, 5 S. M. 216, decided nearly a hundred years ago, up to the present, to proceed only with the utmost caution in dealing with the lands derived from infants because to them the doctrine of bona fides has no application, then with wilful recklessness in the investment of the funds of the company, for which the complainants, appellees here, should not be called upon to suffer.
Marks v. McElroy, 67 Miss. 545, 7 So. 408; Hayes v. Federal Land Bank, 162 Miss. 877, 140 So. 340; Hill v. Anderson, 5 S. M. 216; Upshaw v. Gibson, 53 Miss. 341; Brantley v. Wolf, 60 Miss. 420; Lake v. Perry, 95 Miss. 550, 49 So. 569; Conn v. Boutwell, 101 Miss. 253, 58 So. 105; Watson v. Peebles, 102 Miss. 725, 59 So. 881; Wilson v. McCorkle, 135 Miss. 525, 99 So. 366.
The proceeding for the removal of the disability of minority of Betty C. Eastland did not in any event alter her status as an infant on her capacity or eligibility to be appointed as a guardian.
Marks v. McElroy, 67 Miss. 545, 7 So. 408; Ray v. Kelly, 82 Miss. 597, 35 So. 165.
While the chancery court, in matters of guardianship, including the appointment of a guardian, is exercising a constitutional or general jurisdiction wherein every presumption is indulged to sustain the validity of its decrees, yet the effect thereof is merely to supply omissions from the record of jurisdictional facts necessary to sustain the proceedings, the absence of which from the record in special, limited or statutory jurisdictions would create a contrary presumption and invalidate the proceeding. Such presumption does not confer upon the chancery court, even when exercising general jurisdiction, any additional power nor enlarge the limitations imposed upon the exercise of its constitutional jurisdiction. The presumption does not confer jurisdiction. It merely supplies the evidence of its proper exercise when that jurisdiction could properly have been exercised and evidence thereof is omitted from the record. Presumption is not power, nor can it furnish power to a court of general jurisdiction to do that which is beyond its lawful authority. It cannot, in the absence of a specific act of the legislature expressly promulgating a contrary idea, and will not be presumed to have the power or jurisdiction to do a things which the uncontradicted and unanimous voice of the innate common sense of mankind must brand as ridiculous and impossible, and consequently presumption does not lend to the chancery court authority or jurisdiction to appoint one infant as the guardian of another.
The petition for the appointment of Betty C. Eastland as guardian of her infant sister and brothers was signed, filed and presented to the court in her own name. It will be shown by abundant authority in the discussion of the partition proceeding involved in the case at bar, that in the absence of express statutory authority, a minor has in his own right no entrance to, and no standing in, a court.
9 R.C.L. 279, section 49; Watson v. Peebles, 102 Miss. 725, 59 So. 881; Howard v. McMurchy, 175 Miss. 328, 166 So. 917.
The absurdities which might be predicated upon the unimpeachability of a decree appointing an infant as guardian of another infant, it is easily conceivable, are without number. A few might be instanced by way of illustration. The infant guardian could disaffirm her acceptance of the appointment. The infant guardian would not be bound by the guardian's bond. The guardian's disaffirmance of it upon attaining majority would render it void ab initio, as if it had never been executed.
Mellott v. Love, 152 Miss. 860, 119 So. 913; Crum v. Wilson, 61 Miss. 233.
The guardian might disaffirm any act committed during minority as guardian where the guardian's personal liability might be involved, and if funds had been squandered or wasted during the minority of the guardian, the guardian could not be required to replace or refund the same.
Lake v. Perry, 95 Miss. 550, 49 So. 569.
Inasmuch as under the contention of appellant an infant may be appointed as the guardian of another infant and there is no provision for distinction in age under 21 years in such matters, if an infant 17 years old, the age of Betty C. Eastland at her appointment, could be legally appointed guardian of another infant, there is then no legal reason why a child ten years old might not be appointed guardian for one 20 years old, and by the same token, one 20 months old might be appointed guardian for one 20 years old, and such a decree, if the decree appointing Betty C. Eastland as guardian, involved in this case, is valid, would not be subject to impeachment collaterally; and so it might be surprising but would be legal for a young father under 21 and a younger mother under 18 to awake some fine morning to the realization that their infant sleeping in the trundlebed had been appointed the guardian for them both.
Ames v. Williams, 72 Miss. 760, 17 So. 762.
The decree for the appointment of Betty C. Eastland as guardian for her infant sister and brothers was void for another reason. The petition signed, filed and presented by her, purporting to be in her own right, contains the naked allegation, without explanation and for no purpose apparent in the petition, that W.C. Eastland is the uncle of all of the minors, including Betty C. Eastland. The decree thereon, and which is the only decree upon that subject, does not appoint and does not purport to appoint her as guardian, but as guardian conditionally.
This decree, like the decree in the proceeding for the removal of the disabilities of minority of Betty C. Eastland is probably without a parallel, and the very peculiarity of its provisions should have been, and was, sufficient to put upon notice of the irregularity of the proceeding all those who dealt with or relied upon the guardianship by Betty C. Eastland. Any logician or reasonable man, upon reading it, would go into conference with himself as to its intendment and effect, if any, and naturally would conclude that it was legally meaningless.
The third and last of the proceedings through which the children of the dead Oliver Eastland were attempted to be deprived of a very substantial part of the benefits to which they were entitled as their proportionate share of their dead father's estate, to the immediate advantage of their stepfather, who appears from the testimony in the case at bar to have been deterred from seeking greater advantages only by the obstacles which it seems he understood would be interposed by their uncle on their behalf, was the proceeding for partition of the lands belonging to that estate.
That proceeding is of the class, which, like the proceedings for the removal of disabilities of minority hereinbefore discussed, is dependent for its validity upon strict conformity to the statutes in force at that time prescribing the class of persons authorized to institute the proceeding and other requisites pertaining thereto. The chancery court in the proceeding for the partition of land does not derive its jurisdiction from its general equity powers nor from the common law, but from the statute alone, and, therefore, as in a proceeding for the removal of the disability of minority, the jurisdiction of the chancery court in a partition proceeding is a limited, special or statutory jurisdiction. Consequently, the principles of law announced in the decisions of the Supreme Court of Mississippi pertaining to the jurisdiction of the Chancery Court in a proceeding for the removal of the disabilities of minority, to which the attention of this court has been heretofore directed, that all of the statutory requirements as to parties and procedure must appear affirmatively in the record of the proceeding, or the presumption is that the court was without jurisdiction and the proceeding is void, are applicable in the same measure to a proceeding for the partition of land, and concretely to the proceeding for partition of the lands of Oliver Eastland, deceased, involved in the case at bar; so that a discussion of the scope of and limitations upon that character of jurisdiction would be merely repetition, and it is, therefore, deemed necessary only to request the attention of this court to the authorities heretofore cited upon that subject, to the effect that the power of the court for making the decree for the partition of lands must be capable of being pointed out in the records as meeting all of the statutory requirements as to the parties being of the class permitted by this statute to institute the proceeding, as to the presence in the suit of parties representing in the aggregate the entire interest and ownership of the land, and conformity to the statutory procedure, otherwise the proceeding is ineffective and void.
Paddock v. Shields, 57 Miss. 340; Stern v. Great Southern Land Co., 148 Miss. 649, 114 So. 739; Forest Product Mfg. Co. v. Buckley, 107 Miss. 897, 66 So. 279; Martin v. Gilleylen, 70 Miss. 324, 12 So. 254.
The proceeding is purely statutory, and, hence, the authority for any such proceeding must be capable of being pointed out in some statute of the state in force at the time of the proceeding, and unless that can be done in the proceeding involved in the case at bar, which clearly it cannot, it necessarily follows that there was no warrant of law for the proceeding and it is, therefore, ineffective and void.
A proceeding for the partition of land in this state can be instituted only by those expressly authorized by some statute relating to such partition proceeding to institute such proceeding.
Forest Product Mfg. Co. v. Buckley, 107 Miss. 897, 66 So. 279; Temple v. Hammock, 52 Miss. 360.
No statute has been pointed out and there is no statute, in force in December, 1924, authorizing a guardian, even a legally appointed guardian, to consent to a partition or division of lands in which the ward, or wards, has, or have, an interest. There was no order of the court in the guardianship proceeding, even if a legally appointed guardian, authorizing Betty C. Eastland to institute on behalf of her wards the proceeding for partition involved in this suit, and, if there had been a previous order of the court authorizing such action by her, it would have been without effect and, moreover, in contravention of chapter 130 of the Laws of 1918, prescribing the class of parties by whom partition proceedings might be instituted, and, the procedure in such matters, being purely statutory, that act was exclusive, and under the authorities hereinbefore cited a proceeding instituted by any party not included within the classes designated by the statute was ineffective and void.
An infant has no standing in court, either to institute or defend a suit in his own name, but must be represented by some adult representative.
14 R.C.L. 279, sec. 49; Hardy v. McClellan, 53 Miss. 512; Parker v. Smith, 150 Miss. 849, 117 So. 249; Griffith's Chancery Practice, sec. 45, page 48; Bull v. Dagenhard, 55 Miss. 602; Griffing v. Hopkins, Walker (Miss.) 49.
The Act of 1918, prescribing the class of parties by whom a proceeding for the partition of lands might be instituted, and providing that minors entitled to partition might "sue by next friend as in other cases," precluded the institution of a suit therein by a minor not so represented. While if the minor should be a defendant, summons might be served, in addition to service on the minor, upon the father, mother or guardian of the minor, yet there is no authority for them, or any of them, to represent the minor in the suit, even under that circumstance, and assuredly there is no authority in the father or mother, described in the decisions as being "those most interested in the welfare of the minor," and, a fortiori, in the guardian to initiate a proceeding for the partition of land in which the minor has an interest, especially to initiate an ex parte proceeding which necessarily involves an agreement for a partition between or among those joining in the ex parte petition even though such agreement may not go to the extent of setting off the respective shares of the land, as in the proceeding here involved. The intervention of a next friend for the minor is essential to the validity of the proceeding. It is a condition precedent to the validity of any decree therein.
Jackson v. Jackson, 105 Miss. 868, 63 So. 275.
In the consideration of the validity of the partition proceeding involved in the case at bar, it should be borne in mind that the guardian of a minor has no interest in or title to the property of the ward.
Bull v. Dagenhard, 55 Miss. 602.
The petition for partition is not in the name of the infants by Betty C. Eastland as their guardian, but in her own name, "Betty C. Eastland, guardian of the estate" of the four infants by name. The proceeding was not instituted by the infants, even if they had the right to do so in their own names.
Griffing v. Hopkins, Walker 49; Vick v. Vicksburg, 1 How. 379; Temple v. Hammock, 52 Miss. 360; Rea v. Englesing, 56 Miss. 463.
The four infant children of Oliver Eastland, deceased, who are the complainants in the case at bar having never been parties to any of the proceedings leading up to the deed from Betty C. Eastland, individually and as guardian of the four complainants, to Mrs. Viola Pentecost cannot possibly be affected thereby, and the position of Betty C. Eastland seems to be little, if any, different from theirs.
There can necessarily be neither laches nor estoppel, and certainly not affirmance relating to an act of which the party charged therewith was entirely ignorant.
Cratin v. Cratin, 178 Miss. 881, 173 So. 415.
The occurrences before the infants attained majority could have no bearing upon the case at bar, even if the infants had been in possession of full knowledge of the preceding proceedings. Logically, no act performed before the infants attained the full age of 21 years, claimed by the cross complainant, Prudential Insurance Company, to be by way of affirmance, ratification, laches or estoppel could be binding on the infants for that purpose, for the same reason that an expressly agreement or consent or written ratification of the proceedings would not have been binding.
Gambrell v. Harper, 113 Miss. 715, 74 So. 623; Upshaw v. Gibson, 53 Miss. 341.
The appellant has failed to point out any act, fact or circumstance that could be said to offer even slight foundation for the assertion of affirmance, ratification, laches or estoppel on the part of the complainants, appellees here.
There can be no affirmance, ratification, laches or estoppel predicated on total ignorance of the subject matter to which affirmance, confirmation, ratification, laches or estoppel is attempted to be attributed.
Cratin v. Cratin, 178 Miss. 881, 173 So. 415.
The partition proceeding, and therefore the partition deed, dependent for vitality thereon, to Mrs. Viola Pentecost, the mother of all of the complainants, from Betty C. Eastland, a minor, and Betty C. Eastland, as guardian of her infant sister and brothers, but whether legally or not, without, in any event, legal authority to represent them in the partition proceeding or in the deed based thereon, and with no shadow of right to convey away their land, and, therefore, even if she had been fully cognizant of the transaction, merely an intruder into the partition proceedings and transaction and a stranger to the rights, interest and title of her infant brothers and sister in the land pretended to be conveyed, are all wholly void and a nullity and, therefore, incapable of ratification or confirmation by any act or implication short of that which would be equivalent to the formality and solemnity of an original conveyance.
As to the proposition of laches, which, it is believed, is not directly or in terms charged in the cross-bill, which merely alleges the confirmation of the title of the cross-complainants, it is well established in this state that there is no recognition of that doctrine, and that in the absence of conduct which would constitute an estoppel to obviate a fraud in equity, the period within which any transaction may be assailed is the period within which it would not be barred by the statute of limitations applicable to that character of transaction.
Helm v. Yerger, 61 Miss. 44; Westbrook v. Munger, 61 Miss. 336; Hill v. Nash, 73 Miss. 682; Houston v. National Mutual Bldg. Loan Assn., 80 Miss. 31, 31 So. 540; Cox v. American Freehold and Land Mortgage Co. of London, 88 Miss. 88, 40 So. 739; Lake v. Perry, 95 Miss. 550, 49 So. 569; Comans v. Tapley, 101 Miss. 203, 57 So. 567; Cratin v. Cratin, 178 Miss. 781, 173 So. 415.
The proceedings leading up to the deed from Betty C. Eastland, individually and as guardian for her infant brothers and sister, being void, the deed executed "in pursuance" of the decree for partition and the directions of the decree that it should be made, could hardly be called a contract on the part of any one.
Edmunds v. Mister, 58 Miss. 765; Dickerson v. Weeks, 106 Miss. 804, 64 So. 731.
Betty C. Eastland, even if her appointment as guardian should be assumed to be legal, had no more authority to represent her infant sister and brothers than would any other officer of that court or of any court. A guardian was not of the class permitted by law to institute or become a party to the ex parte petition for partition and the pretension by her to act in joining in the ex parte petition cannot be regarded as having any legal status.
Mellott v. Love, 152 Miss. 860, 119 So. 913; Izard v. Mikell, 173 Miss. 770, 163 So. 498.
It is respectfully submitted that under the evidence and the law the complainants and Betty C. Eastland are entitled to have the partition deed to Mrs. Pentecost vacated and to have a partition of the 111.17 acres described in the bill of complaint, and for each of the five of them to be allotted a share equivalent to one sixth of the whole, and that the decree of the Chancellor should be affirmed.
The statutory plan of partition in this state is, as is held by this court, complete and, as has been held by this court, where a statutory plan is complete, it is exclusive.
Robbins v. Drainage Dist. No. 2, 152 Miss. 872, 120 So. 184; Waits v. Black Bayou Dr. Dist., 185 So. 577; Martin v. Gilleylen, 70 Miss. 324, 12 So. 254; Gilleylen v. Martin, 73 Miss. 695, 19 So. 482; White v. Lefoldt, 78 Miss. 173, 28 So. 818; Forest Product Mfg. Co. v. Buckley, 107 Miss. 897, 66 So. 279; Miss. Chancery Practice, sec. 158, note 14; Stern v. Great Southern Land Co., 148 Miss. 649, 114 So. 739; Laughlin v. O'Reily, 92 Miss. 121, 45 So. 193; Wright v. Bowers, 112 Miss. 516, 73 So. 568.
That the Prudential Insurance Company did not so acquire an undivided interest in any lands other than the tract conveyed to it in severalty by the trustee in its deed of trust, and that the Chancellor was not in error in so holding is put beyond dispute by the definite, specific and clearly expressed decisions of this court.
Richardson v. Miller, 48 Miss. 311; Kenoye v. Brown, 82 Miss. 607, 35 So. 163, 100 Am. St. Rep. 645; Board of Levee Comrs., Yazoo-Miss. Delta v. Nelms, 84 Miss. 642, 37 So. 116.
It would seem to be wholly needless to call to the attention of the court its decisions covering its own procedure, but it may be said that there is nothing more firmly entrenched in the decisions of this court than the holding that this court will not on appeal review a case on a theory other than that upon which it was presented to the trial court. It would be a grave injustice to the learned Chancellor who heard the case at bar in the chancery court if it should be reversed on a theory which was never presented to him, and upon which he had no opportunity to pass.
Estes v. Memphis C. Ry., 152 Miss. 814, 119 So. 199; Miss. Power Co. v. May, 173 Miss. 580, 161 So. 755; City of Jackson v. Williams, 92 Miss. 301, 46 So. 551; Miss. Valley Trust Co. v. Brewer, 157 Miss. 890, 128 So. 83; Mitchell v. Finley, 161 Miss. 527, 137 So. 330; Butler Mercantile Co. v. Cruise, 175 Miss. 200, 166 So. 325; Adams v. Union County, 177 Miss. 403, 170 So. 684; Byrd v. Jackson County, 179 Miss. 880, 176 So. 910; Blount v. Houston Coca Cola Bottling Co., 185 So. 241; Williams v. Bailey, 174 Miss. 760, 165 So. 439.
Oliver Eastland died intestate in Sunflower County in December, 1919, leaving as his only heirs his widow and five minor children. The oldest child, Betty C. Eastland, now Gleason, was at that time twelve years of age. Mr. Eastland owned in fee simple a plantation of about 612 acres, in four neighboring tracts. Two of these aggregating approximately 112 acres are practically adjacent and are referred to in the record as "the Home Place." The other two tracts, aggregating approximately 500 acres, are sufficiently close together to be considered one tract. He owned also a half-interest in 2.34 acres, referred to in the record as the gin site.
After Mr. Eastland's death the widow, with the voluntary aid of Woods C. Eastland, a brother of the deceased, continued to operate the plantation. In January, 1922, the widow married Pentecost, and it was thereafter deemed advisable that the property be divided in kind between the former widow and her children, so that the portion to which the children would be entitled should be set apart to them separately from that of their mother.
In the attempt to carry out this plan, a petition was filed on October 14, 1924, to remove the disabilities of the minority of Betty C. Eastland, then seventeen years of age, and on that date a decree was rendered removing her disabilities specially but not generally. On the same day a petition was filed praying the appointment of Betty C. Eastland as guardian of her four younger brothers and sisters; and a decree was made appointing Betty as guardian, and she gave bond, received letters and proceeded to discharge the duties of a guardian.
Less than two months thereafter, on December 8, 1924, Mrs. Pentecost, and Betty C. Eastland in her own behalf and as guardian for her four minor brothers and sisters, filed an ex parte petition for the partition of all the lands above mentioned, and prayed that the 112 acres be set apart in severalty to Mrs. Pentecost as her share, and that the remainder be allotted in solido to the five children as their aggregate share. The prayer of this petition was granted, and it was ordered that Betty C. Eastland for herself and as guardian for her minor tenants in common make a deed to Mrs. Pentecost for the Home place of 112 acres, and that the latter execute a deed to the children for the remaining land, which was accordingly done.
Mrs. Pentecost having taken exclusive possession of the 112 acres allotted to her, later gave, as if the sole owner of the said 112 acres, a deed of trust thereon to appellant, the Prudential Insurance Company, which deed of trust was validly foreclosed by a sale in pais on July 20, 1935, at which sale the insurance company became the sole purchaser, and received the trustee's deed. The remaining lands allotted to the children were divided in kind among themselves by partition in pais and by deeds in pursuance thereof, executed during the months of December, 1933, and January, 1934, the disabilities of those who were then still minors having been removed for that purpose, and each entered into possession of his severed portion.
Sometime during the year 1935, the children or some of them having learned, for the first time, of the real facts touching all the steps theretofore taken, and as have been above briefly outlined, and that all said proceedings had in fact been invalid, the four children, other than Betty, filed their bill on December 17, 1935, against Betty and against Mrs. Pentecost, and the insurance company, praying that the ex parte judicial partition proceedings above mentioned be declared void; that the 112 acres allotted to Mrs. Pentecost be partitioned in kind, and that they recover their interest of one-sixth each in the said 112 acres. Betty C. Eastland answered, admitting the allegations of the bill, and suggested that she also was entitled to her one-sixth interest in said 112 acres. The insurance company answered denying that the judicial partition proceedings were void, and filed its cross-bill averring that the proceedings were valid, or, if not, that the children, by their subsequent partition of the remaining land in pais among themselves, had ratified the judicial partition, and if mistaken in both of the foregoing contentions then in the alternative that the insurance company was, in equity as the assignee of Mrs. Pentecost, the owner of an undivided one-sixth interest in the entire property of more than 610 acres, and demanded a partition thereof between appellant and the other tenants; and if still mistaken, the cross-bill prayed for general relief.
It is to be noted that the children in attacking the original partition did not bring back into the factual equation the whole tract of 612 plus 2.34 acres, but make the effort to hold on to the portion received by each of them in severalty and at the same time to obtain an undivided one-sixth in the portion assigned in severalty to Mrs. Pentecost and by her alienated to the insurance company. They demurred to the cross-bill, the demurrers were sustained, the cross-bill was dismissed, and a partition was ordered solely of the 112 acres.
The above thumbnail sketch, together with such further of the facts as will be later mentioned, will furnish, as we think, a sufficient statement of the facts to bring out the legal questions which we are called on to decide.
Although the statutes are silent on the subject, a minor cannot be appointed guardian of another minor, for this would not be within the purposes for which a guardian is appointed. A guardian, as the name implies, is a person appointed by the court to guard the interests of another person who, by reason of infancy, lunacy, or the like, is incapable of guarding his own interests without aid. It would be an anomaly that a minor, disabled by reason of his infancy, should have another infant likewise disabled and incompetent, to take care of him as guardian. Moreover, a guardian before being allowed to receive letters must execute a guardian's bond, and an infant has no capacity to execute such a bond as a binding instrument.
It is unnecessary to decide whether an infant whose disabilities of minority have been generally and fully removed in a judicial proceedings and by a final judicial decree to that effect may be appointed guardian; because here the decree removing the disabilities of minority was special and limited as follows: "It is therefore ordered and adjudged and decreed that the disability of minority of the said Betty C. Eastland be and the same is hereby specially removed; that said Betty C. Eastland is hereby empowered to do any and all acts in reference to her property that meets with the approval of her uncle, W.C. Eastland, and which approval must be in writing." Her authority under that decree was a conditional power to deal with her own property, whereas a guardian deals with the property of another and a different person, — treating, for the purposes of this case, but not as decision, the recital in regard to the necessity of approval by her uncle as surplusage. We say nothing of the effect of the acts of a minor, as guardian, who, although a minor, has been appointed guardian. What we are pointing to is that the acts of a minor as guardian do not irrevocably bind her as an individual and as to her individual property therein.
Under chapter 130, Laws 1918, which was in force, unamended, at the time of the attempted partition proceedings herein, it was provided that in such a proceeding "an infant may sue by next friend as in other cases." There is no provision therein by which an infant may appear as complainant or petitioner in a partition proceedings otherwise than as quoted, — "by next friend as in other cases." The petition for partition, in attempting to make the minors as parties complainant or as petitioners, recites as follows: "Comes . . . Betty Eastland of her own right, . . . and Betty C. Eastland, guardian of the estate of Woods C. Eastland, Oliver Eastland, Viola Eastland and Chester Eastland, all minors, and with respect would show, etc."
It will be observed that Betty C. Eastland assumed to petition as guardian, and not in the name of the minors as their next friend. And if we take recourse to the liberal rule as illustrated in Aetna Indemnity Co. v. State, 101 Miss. 703, 723, 57 So. 980, 39 L.R.A. (N.S.), 961, and allow the characterization as guardian to be translated and also here transposed, so as to make Betty C. Eastland, the next friend, we are at once met with the proposition that thereby the next friend of the minors was then also a minor.
It is an elemental proposition that a minor may not prosecute in a judicial proceeding solely in his own name and acting alone. He must sue by next friend, unless expressly authorized by statute to proceed otherwise. This is required as a means of aid and protection to the minor. And there is no discretion in the court to dispense with this requirement when it is expressly and plainly imposed by statute in the particular proceeding, and particularly so when the estate and interest of minors are so seriously concerned as in a partition of their real property.
In holding, as we do, that the provision of the statute as it then existed, that a minor may sue in partition by next friend was an exclusive and indispensable requirement, we are within the reason and the principle to which the court gave adherence in Jackson v. Jackson, 105 Miss. 868, 63 So. 275, Ann. Cas. 1915D, 489. We are mindful, of course, that in the Jackson case the court was exercising a strictly statutory jurisdiction, and that the rule is that in the exercise of a general common-law or equity jurisdiction, the fact that a minor is not represented by next friend is a procedural matter and not one of substance, 14 R.C.L., pp. 280, 281, 31 C.J., pp. 1121-1123; and we understand, too, that a partition proceeding is of equitable origin, Paddock v. Shields, 57 Miss. 340, and that in the absence of statutory regulation the courts will exercise their powers according to the ordinary rules; but where instead of leaving a particular matter to be proceeded with under the ordinary common-law rules in law or in equity, the lawmaking power has expressly prescribed by statute the particular manner in which the particular jurisdiction may be exercised, a substantial compliance with the mode thus prescribed is, as to its protective features, mandatory, rather than directory and dispensable. 15 C.J., sec. 275, p. 901; 2 Lewis' Sutherland Statutory Construction (2 Ed.), section 627 et seq. It is true that such compliance may be, and often is, waived by competent parties, in the several different ways recognized by law, but minors are not competent during their minority to waive statutory modes enacted for their benefit and protection.
And the same reasoning to which we have adverted, in respect to a minor as guardian for another minor, applies to a minor as next friend to another minor. The law being that a minor, on account of his incompetency of minority, may not sue except by the aid and assistance of a competent next friend, that next friend must not be under the same disability, but must be an adult. To paraphrase the language hereinabove used in regard to a minor as a guardian to a minor, it would be an anomaly that a minor disabled, on account of his infancy, to bring suit without a next friend, should have as his next friend another infant likewise disabled and incompetent.
And the situation is not aided here by the partial removal of the disability of minority of the next friend, the terms of the decree in that respect having been already quoted; and thus it is unnecessary to decide whether a minor whose disabilities of minority have been fully and completely removed may appear as next friend.
The four minors were never in court in the partition proceeding; they were never brought therein as required by the statute. Indeed, the case is that Betty C. Eastland herself was never in court in that partition proceeding, for she was a minor, whose disabilities had not been removed so as to allow her to sue and be sued, and there is no allegation whatever, either direct or convertible, that any next friend appeared therein for her. But this latter is immaterial, for the proceeding being void as to the other four minors was void as to all parties. And the facts which rendered it void were open to all adult persons who, in the exercise of the requisite diligence subsequently dealt with these titles, — the record of the chain of title disclosed everything of the facts which has herein been said about the matter.
In this immediate connection, it may be observed that much of the argument of appellant is directed to the insistence that although Betty C. Eastland was in fact a minor, the decree of partition cannot be collaterally attacked on that account. When a decree of a court of general jurisdiction is questioned on account of want of jurisdiction of the parties, and the record which is the foundation of that decree is silent as regards the point upon which the attack is based, a conclusive presumption arises, as against a collateral attack, that the court inquired into the facts necessary to give it jurisdiction and found upon such inquiry that the necessary jurisdictional facts were present. Brotherhood of Railroad Trainmen v. Agnew, 170 Miss. 604, 613, 155 So. 205; In re Heard's Guardianship, 174 Miss. 37, 43, 163 So. 685. But this presumption disappears, of course, when the record itself stands athwart and shows to the contrary of what the stated presumption would import into the decree; and a collateral attack is then admissible. 34 C.J., pp. 551, 552, secs. 850 (4), 851.
Here, in the body of the partition petition itself, the foundation pleading, there is the express allegation, in the eighth paragraph, that the disability of minority of the petitioner, Betty C. Eastland, had been removed by a decree of that same court "on the ____ day of October, 1924," — less than two months before the filing of the partition petition. The record shows on its face, therefore, that any inquiry, if made, would have inescapably disclosed the fact to a certainty that Betty C. Eastland was then a minor less than eighteen years of age and whose disabilities of minority had been only partially removed.
If the record in the partition proceeding had been silent whether Betty C. Eastland was a minor or an adult, and whether her brothers and sisters were minors or adults, or the decree had expressly adjudged each of them an adult, the decree would be impervious to a collateral attack on the ground of the minority of any of them, Eubanks v. McLeod, 105 Miss. 826; Id., Miss., 63 So. 226, 69 So. 289, even though, in fact, they and each of them were at the time minors and hence were never in court, — this on the ground of an essential public policy that faith and credit shall be accorded to the decrees and judgments of courts; but this right of reliance belongs only to those who are within the reasons of the protection, not to those who, when they look upon the record itself, may there see that which makes the judgment or decree invalid.
Appellant argues also, as already mentioned, that the abortive partition proceedings were cured by way of ratification or estoppel by the subsequent partition in pais by the five heirs, other than Mrs. Pentecost, of the remaining 500 acres. The evidence shows that these minor heirs knew nothing of the real facts now revealed, and being infants at the time cannot be charged with any want of diligence. They acted promptly after discovering the facts; and this is all that is necessary to say on that point, except it must be added that inasmuch as the five heirs other than Mrs. Pentecost are holding in severalty, by a division in pais among themselves, the more than 500 acres set aside to them in the abortive judicial partition, they cannot disaffirm and renounce that judicial partition except by restoring the status quo ante. Since, however, we are reaching an equivalent result, so far as justice requires, by what we are to say in the succeeding portion of this opinion, we do not pursue the discussion as to the obligations of infants as to restoration, etc., upon an election of disaffirmance.
The partition proceedings having been void, and not having been cured, if curable, the final questions are as to what shall be done about the situation in which appellant finds itself as the vendee in severalty of the 112 acres which was allotted to Mrs. Pentecost in the abortive partition. It is the contention of appellees, relying upon Richardson v. Miller, 48 Miss. 311, and Kenoye v. Brown, 82 Miss. 607, 35 So. 163, 100 Am. St. Rep. 645, that appellant has no other than an undivided interest in the 112 acres conveyed to it by Mrs. Pentecost, and has no legal interest as a tenant in common, or as an assignee, in the other lands; and this is, of course, correct. Appellant contends, in the alternative, that under the allegations and prayer of its cross-bill, the whole land of approximately 612 acres, as well as the 2.34 acres, should now be partitioned in kind, and, not that any part of the lands other than the 112 acres might be allotted to appellant, but if it can be done without injustice to the other of the original tenants in common, that there should be set aside to appellant that portion of the land which was conveyed to it in severalty by one of the tenants in common, Mrs. Pentecost, and that the other five tenants in common should be required, if practically possible, to take their shares out of the remaining lands; and we think that, to the extent and under conditions hereinafter mentioned, the contention last stated should be upheld.
At this point we may notice the argument of appellees that the allegations and the prayer of the cross-bill are not sufficient to present and require action by the court as respects the stated alternate contention of appellant. We think appellees are mistaken in this, and we refer to the rule as laid down in Milam v. Paxton, 160 Miss. 562, 569, 134 So. 171. And we may add also under sections 2922, 2923, Code 1930, the court has the power and duty in partition proceedings to adjudicate and adjust all the equities between the parties and to that end a cross-bill is, of course, available when necessary, such a cross-bill to be dealt with as in other suits in chancery.
In Richardson v. Miller and in Kenoye v. Brown, supra, there had never been any attempted partition between the parties owning the whole estate as tenants in common, — no partition either in pais or by judicial decree. There the tenant conveying, simply of his own independent action, conveyed a part of the whole property as if the part conveyed had been set apart to him in severalty, which latter had not been done, and the vendee knew it or could easily have ascertained that bare fact. But even in those cases, it was said that if in a subsequent partition of the entire tract of the lands, the particular part previously conveyed by metes and bounds should be assigned to the cotenant who had thus conveyed, the title would inure by virtue of the doctrine of estoppel to his grantee.
We have no difficulty, therefore, in saying that where there has been a partition in pais, and each cotenant takes possession of his assigned part, as if in severalty, and the partition fails of effect, because of the infancy of one or more of the parties, or for some other reason by which the partition is avoided, or if, as in the case now before us, there has been an ostensible partition by judicial decree, followed by a further partition in pais, and the parties have each taken possession of his assigned part as if in severalty, and the partitions fail for reasons such as have been mentioned herein, and in either of such cases one of the cotenants has conveyed his assigned part by metes and bounds, the court should so order the partition, when it can be done in kind, as can be done here, as to allot to the vendee the particular part which he has purchased from the ostensible holder in severalty; and if in order to make an equal division as respects values, a resort to owelty against the conveyed portion be necessary or a deduction therefrom in kind, this should be done if practicable thereby to reach the ends of equity and equality as between the several parts of the whole.
And in order to reach this end of obvious justice, the court, in any partition where the facts are such as set forth in the foregoing paragraph, and where there has been a disaffirmance by some of the tenants in common, should allow all the lands to be brought into the proceeding, not that a vendee of a tenant in common may have or take any part, in or of the land not included in the vendee's deed in severalty, either in kind or by way of owelty, but to present the issue whether the whole land can be so divided as to allot to the vendee the land which had been conveyed to him and at the same time give to the others of the original tenants in common out of the remaining lands their just share of the original whole, taking away from the lands of the vendee in kind what is necessary to make the other tenants equal in value or by requiring owelty of the vendee; but in no case, as we repeat, awarding to the vendee any part of the other land, or anything in owelty.
The rule which is outlined in the foregoing paragraph is sustained by the authorities, even when there has been no attempt at a previous partition and the taking of possession by the tenants in severalty, 20 R.C.L., p. 732, sec. 14; 47 C.J., pp. 486, 487, secs. 538, 539, and the cases reviewed in the notes 114 Am. St. Rep. 81; and thus it could not be otherwise in a case such as here before us, where there has been a previous partition, although invalid, and a taking of possession in severalty thereunder, and thence a disaffirmance by some of those originally in interest. The whole matter gets back to the maxim that he who seeks the aid of a decree of the chancery court shall do equity to the parties who will be affected by that decree. This maxim is no less operative in partition proceedings than in any other cause or matter in chancery. Appellees cannot avoid the operation of that principle by an effort to confine the partition to the particular tract theretofore conveyed in severalty and at the same time hold on to what they have received in ostensible severalty of the remaining lands, but must submit to the proper judicial inquiry whether they may not be made whole, and receive their just share out of a division of the remaining lands with such contribution, if any, out of the conveyed portion as may be necessary to make the other of the original tenants in common equal in value of their several shares, as compared with the share conveyed to the vendee, and certainly they can have no obligation to this in point of justice, when it is, as it must be, without any risk that any part of the remaining lands, or any owelty, will be taken therefrom to make the vendee's conveyed portion equal in value to the other portions. The principle is, at last, that no party should object to, or complain of, that which will do him no harm, but will do the right to and for an opposite party.
The demurrers to the cross-bill should have been overruled. The decree is, therefore, reversed and the cause is remanded to be proceeded with as indicated in the foregoing opinion.
Reversed and remanded.