McEndree v. McEndree

Davison, J.

This was a bill in equity by the appellee, who was the plaintiff, against Richard McEndree, John McEndree, and Abner Hanks. The object of the suit was to subject certain real estate to the payment of alleged to be due to the plaintiff. Hanks was defau^el-;-^'’ Richard and John McEndree, being minors, appealed,by guardian ad litem, who answered in the usual forrn.- -'-At the September term, 1845, as appears by the record,,, the depositions then filed in the cause were withdraw,j1 and" leave was given to take depositions; but it does not’áp-.. pear that others were ever taken or filed. At the March term, 1846, the following agreement appears to have been made between the parties:

“ It is agreed that the land described in the bill be sold, and the plaintiff, out of the proceeds thereof, be paid 70 dollars; and that the residue of the proceeds be paid over to Richard and John McEndree; and that they pay the cost,” &c.

The Court, at the same term, rendered a decree in accordance with the agreement. Defendants appeal to this. Court.

The record before us was issued on the 28th of Múrela, 1855, and filed here on the 30th of that month. For error, it is averred that the decree was rendered against John and Richard McEndree, they being infants, without any proof *98 whatever of the allegations in the bill. To this, the appel}ee answered, 1. In the proceedings and decree there is no error. 2. That Richard and John McEndree arrived at full age after the expiration of three years from the rendition of the decree, and that this appeal was not taken until the expiration of three years from the time they so arrived at full age. Reply in denial of the second paragraph. Upon the issue thus made, it was proved that Richard was 21 years old in September, 1848, and that John arrived at the same age in March, 1853. It follows that when the record in this case was issued and filed, an appeal, as to Richard, was barred by the statute; but as to John, it was not barred. R.. S. 1843, p. 631.—2 R„ S. p. 160, §§ 561, 562. The latter section provides that the Supreme Court, upon being satisfied that the statute of limitations has barred a part, only, of the appellants, may strike their names from the record and proceed, &c., as to those appellants who are before the Court. The name of Richard McEndree is, therefore, stricken from the record.

In reference to the assigned error, it may be noted that we have recently decided that a decree against an infant will not be reversed simply because the evidence is not in the record. 9 Ind. R. 481. But in this case, it is insisted that the record itself shows that there was no evidence before the Court. This position is at least plausible. The parties having agreed that the land be decreed to be sold; that the plaintiff, out of the proceeds, receive his demand ; and that the residue be paid over, &c.; there would seem to have been no necessity for evidence, and it may be inferred that there was none. Indeed, the agreement, on the part of the guardian, was, in effect, an admission of the truth of the averments in the bill; and the action of the Court in passing the decree, is in strict accordance with the agreement. There is, however, nothing in the record that would, in any event, allow the guardian thus to admit a case against the infants. A decree, founded on such an admission cannot, therefore, be maintained. 8 Blackf. 300, 301 .—1 Ind. R. 374.

Per Curiam.

As to the defendant, John McEndree, *99 the decree is reversed. Costs here against the appellee. Cause remanded, &c.

G. M; Overstreet and A. B. Hunter, for the appellants. F. M. Finch, for the appellee.