Rule v. Broach
Rule v. Broach
Opinion of the Court
delivered the opinion of the court.
The decree of the Probate Court, made in May, 1857, for the sale of the land, was void as to Elizabeth and Emily Bryant, the wards of Dickson, on whose application the sale was ordered without citing them to appear. The thirteenth section of “ An act to amend the probate laws of the State, and for other purposes,” approved March 1, 1854 (Sess. Acts, p. 65), required “ all persons interested, residing in the State, * * * to be cited,” etc., when such an application was made.
The learned judge below rightly concluded that Burrus v. Burrus, 56 Miss. 92, had reference solely to the provisions of the Code of 1857. In Johnson v. Cooper, 56 Miss. 608, the minors were duly cited. In this case they were not cited, as the law required, nor was a guardian ad litem appointed for them. The decree for sale being void as to some of the parties, was void as to all, according to Hamilton v. Lockhart, 41 Miss. 460, the only case in which such a decree has been held yoid when attacked collaterally, and which ignored the manifest distinction between judgments at law which are entire and decrees which are not, but which we are not disposed now to disturb. It is not to be inferred from our unwillingness to
The defendant below, being in possession of the land, should not have permitted it to be sold for taxes, and was rightfully denied the benefit of the outstanding tax-title in another as a shield to his possession. He could not have purchased.at the sale for taxes so as to hold the land against the plaintiffs, and, being precluded from purchasing himself, he could not claim any advantage from the purchase by another.
The defendant could not defend the action under the right of the widow of Bryant as dowress, in view of the doctrine, settled in this State, that her right is personal to her and not assignable.
Judgment affirmed.
Reference
- Full Case Name
- William Rule v. Elizabeth J. Broach
- Cited By
- 3 cases
- Status
- Published
- Syllabus
- 1. Probate Court. Decree for sale of land. Petition of guardian. Wards not cited. Sect. 13 of “An act to amend the probate laws of the State, and for other purposes,” approved March 1, 1854, required “all persons interested, residing-in this State,” to be cited upon an application to the Probate Court by any heir, executor, administrator, or guardian for the sale of the land of a decedent. A decree rendered while this act was in force, for the sale for division of the land of a decedent, upon the petition of a guardian of some of the heirs, without his war-ds being cited or a guardian ad litem appointed for them, is void. 2. Same. Decree void as to some of the parties. Effect as to others. The decree in the case above stated being void as to some of the parties, is void as to all, according to the decision in Hamilton v. Lockhart, 41 Miss. 460, which is adhered to so far as it applies to probate proceedings. 3. Same. Application of Burrus v. Burrus, 56 Miss. 9H. The decision in the case of Bumus v. Burrus, 56 Miss. 92, refers solely to the provisions of the Code of 1857. 4. Ejectment. Defence of outstanding tax-title. Case in judgment. The lands of a decedent were sold under a decree of the Probate Court, and by successive conveyances were conveyed to R., who received possession of the same. While in his possession the lands were sold to the State for taxes. After the period for redemption had expired, they were purchased from the State by A. Afterwards the heirs of the decedent brought an action of ejectment to recover the lands from’R. The probate decree of sale was void, and R. set up in defence the tax-title held by A. Held, that R. is not permitted to make such defence. 5. Dower. Unallotted. Purchaser thereof. Contest with heir. The purchaser of the lands of a decedent from the widow, whose dower has not been allotted, acquires no title as against the heirs, because of the rule in this State that a right of dower is not assignable.