Theobald v. Deslonde

1. Guardian and Ward. Sale of ward’s land. Code 1892, § 2205 (Code• 1906, § 2422). Chancery court. Jurisdiction. Summons on next of kin of ivard. Void sale. Under Code 1892, § 2205 (Code 1906,' § 2422), requiring three near-relatives of the ward to be summoned, if there be so many in the-state, on petition by the guardian for a decree authorizing him. to sell the ward's land, a petition for the sale of land belonging jointly to three wards, showing that each of them reside in this-state, and that they are a brother and sisters, will not support a decree and sale where neither was summoned as a near relative of the other, although the petition alleges, contrary to its-own averments, that the wards had but one near relative in the, state and he was summoned. 2. Same. Misdescription of land. Effect The pretended sale by a guardian of lands in a designated section, as the property of his wards, is void where the wards owned no-land in that section but owned lands in a different section, although the land sold was further described as “commencing at the southeast corner of land owned by” a designated person “on the Gulf of Mexico” and as “being the same land conveyed by” a specified deed “recorded in” «, specified book on a. designated page, no such deed being there recorded. . 3. Same. Void decree. Collateral attack, ' Innocent purchasers for value of land sold under a voidable decree-will be protected against a collateral attack upon the decree, but, if a decree be void, it is subject to be attacked collaterally as well as by direct proceedings.

From the chancery court of Harrison-county. Hon. Thaddeus A. Wood, Chancellor. Deslonde and others, appellees, were complainants in theeourt below; Theobald and another, appellants, were defendants-there. From a decree overruling their demurrer to the complainants’ bill the defendants appealed to the supreme court. The appellees, the three children of Mrs. Belle Deslonde, alleged in their bill that in 189.0, by the will of their deceased grandmother, a life estate in certain land in section 35 of a designated township and range in Harrison county was devised to their mother for her life, with remainder therein to themselves in fee; that in 1901 their mother, who was at the time their legally appointed guardian, filed a petition in the chancery court for the sale of the land, erroneously describing it as being in section 3 of the same township and range, averring that a sale of the land was to the interests of the children, the appellees, as. the rents and profits of the land were insufficient for the maintenance and education. The prayer of the petition was as follows : “that citation issue as directed by law and also to A. M. Dahlgren as provided by Code 1892, § 2205, he being the only next of kin residing in said state, and that the said land be sold as may be directed by this court.” Citation was issued and'summons served upon A. M. Dahlgren, he being a cousin of the petitioner, and she afterwards married him. He prepared the petition and there was no service of summons upon any other near relatives of the wards, nor upon any of the wards themselves. "When the petition for the sale was filed, one of the wards, appellee Andre Deslonde, was absent, being in the Hnited States navy and another of the appellees was self supporting, and a sale of the land was unnecessary for the support and maintenance of the wards. The description of the land in the petition and in the decree of sale was erroneous in designating it as in section 3, when it was in section 35, and, although further described as being a tract commencing at the southwest corner of a lot owned by one Morgan facing the Gulf of Mexico, and being the land described in a certain deed book on a certain page, yet, as Morgan owned several lots facing on the Gulf of Mexico, and as the designated volume and page of the deed book disclosed no. such description, the land could not be identified. The bill charged that the defendants claimed title to land in question under the sale decreed upon the aforesaid petition, and that, as against complainants it was invalid, and prayed “that the claims of defendants to the land be cancelled as a cloud upon complainants’ title. On' the hearing of the demurrer it was agreed of record .that the appellants were bona fide purchasers for value, and, except as to matters apparent of record in the county, they had no knowledge of the facts set up in the bill. It was not obligatory on the appellants, in examining the title before purchasing, to look back further than the decree ordering sale of the land. It is not for a purchaser to determine whether the court was mistaken where it had jurisdiction of the matter, and no'appeal therefrom was prosecuted. The decree of sale could be reversible only on direct appeal therefrom, and not collaterally in another and subsequent suit. Thompson v. Tolmie, 2 Peters 167, 7 L. Ed. 385; McNitt v. Turner, 16 Wall. 352, 21 L. Ed. 345; United Stales v. Arrendondo, 6 Peters 691, 8 L. Ed. 554. It is a universal principle that, where power or jurisdiction is delegated to any public officer or tribunal over a subject matter, and its exercise is confided to his or their discretion, the acts so done are binding and valid as to the subject matter; and individual rights -will not be disturbed collaterally because of anything done in the exercise of such discretion within the authority conferred. As the appellants were innocent purchasers for value, they must be protected as against the appellees’ collateral attack on the decree whereby the land was sold. Nash v. Williams, 20 Wall. 226, 25 L. Ed. 259; Voorhees v. Jachson, 10 Peters 450; Mohr v. Manierre, 101 IT. S. 426; Thaw v. Falls, 136 U. S. 519; Colorado, etc., Co. v. United Slates, 123 IT. S. 307; United Stales v. California, etc., Land Co., v. United States, 148 IT. S. 31. See also. Price v. Martin, 46 Miss. 499; Fitzpatriclc v. Beall, 62 Miss. 249. i The facts set forth in the petition for sale reasonably showed that a sale of the land was absolutely necessary for the support and education of the wards, and that they had no- income from the land, and the petition was sworn to and this constituted all necessary under the statute law to- give authority to the court to order a sale. See Code 1892, § 1297. As regards the contention that the land in controversy, was not sold, since there was a misdescription in the government section, we call the court’s attention to its being also and mo-re particularly described as being situated near the property of one Morgan and also as “being a part of the land conveyed by Tyler .to IIollingsAvorth .by deed dated August 25, 1873, recorded in said county in deed boot No. 8, page 217.” This latter description remedied the matter. Bowers v. Andrews, 52 Miss. 597; Tucker v. Field, 51 Miss. 194. The petition for sale of the appellees’ land was filed under ‘'Code 1892, § 2205, and not under Code 1892, § 2197. The petition does not reite that “the personal estate and the rents and profits of the real estate are not sufficient for the maintenance .and education o-f the Avard,” as required by Code 1892, §2197, and hence the case of Fitzgerald v. Beall, 62 Miss. 244, is not applicable. It will be noted that the petition for sale closed with the prayer that Dahlgren, as the next of kin, should be cited as required by Code 1892, § 2205. While it is true that the allegations- of the petition very nearly met the requirements of Code 1892, § 2197, they did not come entirely Avithin its requirements, at least in so far as íavo of the appellees were concerned, for the l’eason that although they were minors yet they were self-supporting, Andre Deslonde in fact assisting in the support of his mother and minor sister by remittances while absent from his home. But, even if all of the re•quirements of Code 1892, § 2197, had been met, so far as the ab legations of the petition were concerned there could be no- authority for authorizing the joint sale of land OAvned jointly by several wards for their joint support, but instead the necessity for the Sale of the interest of each ward for such ward’s support-must be shown. Code 1892, § 2205, provides that when a petition is filed setting forth why a sale of land would be beneficial to the ward who-owns it, a “summons shall issue for at least three of the near relations of the minor, if there be so many in the state.” If this-sale of land as made under this statute, it was and is void because the three next of kin were not served, for while the petition alleged that the three minors had no other relatives in the-state, except Dahlgren, the attorney who promoted the sale, yet it also states that the appellees were brothers and sister; and therefore, under the statute, each minor had the right to have the’ other two cited as his or her next of kin. The statute does not require the next of kin to be adults, and it cannot be contended that, if the interest of one of the minors ilone had been sold, it would not have been necessary to summon the other two minors. Then, if the interest of one ward could not have been sold without citing the other two, how could the interests of all three wards be sold without citing any of them ? The error in the description of the land sold was,not corrected by the additional description. There may have been an indefinite number of lots owned by Morgan facing on the Gulf of Mexico. And the bill alleges that the reference to Deed Book and page show nothing to throw light on the description, the scrivener having evidently made a mistake in his reference to deed-book and page.