Kegans v. Allcorn
| Decision Date | 01 January 1852 |
| Citation | 9 Tex. 25 |
| Parties | KEGANS v. ALLCORN. |
| Court | Texas Supreme Court |
It does not appear to have been necessary by the Spanish law to make the heirs parties in order to divest the interest of an estate.
Where an administratrix was sued in 1838 in the District Court for the specific performance of a contract of her intestate to convey land, and she named in her answer the children and heirs of her intestate, all of whom were minors, and for whom the court appointed guardians ad litem, who appeared and answered: Held, that in the absence of any positive regulation or provision on the subject it was competent thus to make the minor heirs parties; that they were concluded by the judgment, and that they were not entitled to a writ of error on attaining full age. (Note 5.)
The ordinance of 22d January, 1836, (Hart. Dig., art. 983,) introduced the Louisiana law merely as the law of procedure in the settlement of successions; it did not furnish the rule of decision or practice in suits between the estate and third parties in the District Court.
Persons improperly omitted may be made parties in the progress of a cause, and the manner of doing it, when not prescribed by positive law, must be determined and regulated by the courts. (Note 6.)
Where there was no positive provision of law requiring it, the court said: “No sensible object could be attained by the service of process on an infant of eleven years, and there can be no reason for requiring the performance of that idle formality.”
The security of property, the repose of society, public policy require that the proceedings of the courts in former times, under which rights were supposed to have vested, and on the faith of which property has been transmitted, should be upheld whenever this may be done without violence to the established principles and usages of the law.
Error from Washington. This suit was brought in 1838 by the defendant in error against Nancy Kegans as administratrix of James Kegans, deceased, for the specific performance of a contract between the plaintiff and the defendant's intestate for the conveyance by the latter to the former of a half league of land.
The defendant in her answer named the children and heirs of her intestate, James Kegans, all of whom were minors. The presiding judge thereupon appointed an attorney ad litem for each of the heirs, who appeared and answered for the heirs whom they respectively represented. At the Spring Term, 1839, the court rendered a final degree in favor of the plaintiff against the heirs and legal representatives of Kegans. On the 5th of November, 1850, the plaintiffs in error, heirs of James Kegans, the eldest of whom was eleven years old when the judgment was rendered, obtained this writ of error.
J. D. Giddings and G. W. Horton, for plaintiffs in error. I. Under the idea that some objections will be raised to the right of the plaintiffs in error to maintain the present proceeding we advert to some authorities in support of the right.
1st. Are the present plaintiffs in error the proper parties to prosecute this writ? Tomlin in his Law Dictionary gives the following rules: “Any person damaged by error in the record, or that may be supposed to be injured by it, may bring error to reverse it, whether he be party or not.” The heir may bring error to reverse the judgment against the one under whom he claims. He who is made party by the law may bring error, although not originally a party.
2d. Are the plaintiffs in error barred by limitation? We say not. At the time the judgment was rendered in the court below the Spanish law of prescription was in force in Texas. We find nothing in that law, as given in the Partidas, relating to the limitation of appeals--writs of error not being known to the Spanish law. But the sixth Partidas, Title 29, provides that minors and married women do not lose by prescription.
The acts of limitation by the Congress of the Republic, (see acts of 5th Congress, p. 162,) we think, easily admits of an interpretation in favor of the right of the plaintiffs in error to prosecute this writ. The 9th section provides that no writ of error shall be granted after two years after final judgment. But the 11th section says that no law of limitation shall run against minors, married women, &c.; and when the limitation does not commence prior to the disability the same time is allowed such persons after removal of the disability as is allowed to others.
The plaintiffs in error being minors at the rendition of the judgment, the limitation consequently did not commence prior to the disability of minority, and therefore two years, the time allowed in the law to bring a writ of error, is given by law to the plaintiffs in error to prosecute their writ. In the case under consideration the record discloses the fact that the eldest of the present plaintiffs in error, viz, George W. Kegans, was a minor of the age of eleven years at the rendition of the judgment, that is, in March, 1839. He would therefore be of age in March, 1849. Allowing the two years after the removal of the disability of minority, he would have until March, 1851, to bring his writ of error; the writ being obtained in November, 1850, some four months of the term had yet to run when this proceeding was commenced. It will follow as a matter of course that if the eldest of the minors is not barred by limitation the younger are not.
Having, as we confidently suppose, established the proposition that the proper parties have been made to this proceeding, and that the plaintiffs in error are not prejudiced by any law of limitation, we proceed to discuss the several assignments of error, and
II. 1st. That there was error in this, that the plaintiff below proceeded against the administratrix of Kegans alone.
The 3d section of an ordinance of the provisional government entitled “An ordinance for opening the several courts of justice,” &c., (see printed volume, p. 135-6,) provides that all proceedings relative to successions, matters of probate, et cetera, shall be regulated and governed agreeably to the principles and laws in similar cases in the State of Louisiana.
The case under consideration was a proceeding relative to a succession. It was a suit against the succession of James Kegans, and is such a case as was comprehended in the terms of the ordinance cited. It then was a case to be regulated and governed by the laws of Louisiana. If we examine the Louisiana law in reference to such cases we see at once that the error assigned was committed in the court below.
Suits against vacant successions must be against the heirs and the curator appointed to administer the succession when the heirs or any of them are present or represented in the State. (Code of Practice, art. 122-3, p. 42.)
The record discloses the fact that the heirs were present in the Republic when the suit below was instituted, and they should therefore have been made defendants with the administratrix; and if the heirs had not been present, that fact should have appeared affirmatively in the petition to have authorized the plaintiff to have proceeded against the administratrix alone. The naming of the minor heirs in the answer of the administratrix did not make them defendants.
III. And this brings us to the second assignment of error, viz, that the court erred in treating the minors as defendants upon the mere naming of them by the administratrix in her answer.
Under no system of laws can a party be treated as a defendant to a suit till he be notified of the suit by the service of some sort of process upon him.
The 8th section of the act of congress requires that the petition should contain a clear statement of the names of the plaintiff and defendant, and “there shall be delivered to the defendant by the sheriff a copy of the writ and petition.” (See page 200, vol. 1, Laws of Republic.) The minors not having been named in the petition, and not having been served with any notice of the suit, could not be properly treated as defendants in the suit.
IV. As to the third assignment of error. An attorney ad litem for minors is not known to any laws. But admitting that in this case attorney was synonymous with curator or guardian, still the court below erred in the appointment. Where a suit is instituted against a minor who has no guardian, the plaintiff may apply to the judge of the place to appoint some one to assist the minor and answer for him. (Partida 3, title 2, law 11, vol. 1, p. 32, and see art. 118, Code of Practice, p. 38, to the same effect.) Consulting the laws just cited it will be seen that it must be shown affirmatively that the minor has no guardian, and the plaintiffs must demand that the appointment must be made by the judge. Neither is it shown that either of the curators appointed ever took the oath faithfully to discharge the trust. A judgment against a minor without his having a guardian or some one appointed to represent him in the suit is invalid. (Partida 3, title 2, law 11, vol. 1, p. 32.) A judgment against one not previously cited is not valid. (Partida 3, title 22, law 2, vol. 1, p. 274.)
V. Having, as we confidently suppose, shown that the proceedings in the court below were wholly irregular and erroneous, we proceed now to notice briefly the more important point in the cause, viz, that the court below erred in giving judgment at all in favor of the plaintiff below.
We lay down the proposition that taking the facts alleged in the petition of plaintiff below and as found by the jury to be true, still the plaintiff below was not entitled to recover. The contract or bond sued on, and which is made a part of the petition, shows that Kegans had contracted to sell a part of the league of land received by him as a colonist in Austin's colony. It is also shown that he had received the title of possession of the land on the 23d March, 1831, and that on the 11th May of the same year, that is, in less...
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