McDonald. v. Idem

• Decision Date: 31 August 1869
• Citation: 3 W.Va. 676
• Court: West Virginia Supreme Court
• Parties: Andrew McDonald et al. v. George W. McDonald.Idem.vs. James L. Campbell.

3 W.Va. 676

Andrew McDonald et al.

v. George W. McDonald.Idem.vs. James L. Campbell.

Supreme Court of Appeals of West Virginia.

August Term, 1869.

It is error to render a decree at a term which begins before the period of one month has expired from the due execution, of an order of publication. Code of Virginia, 1860, chap. 170, sec. 11.

It is error to render a decree against infants without a guardian ad litem having been appointed. And it cannot be presumed that such guardian was appointed, in the absence of proof that the records were lost or destroyed.

At a special term of court, any civil cause may be tried which could lawfully have been, but was not tried at the last preceding (regular) term which was or should have been held. Code of Va., 1860, ch. 158, \ 33.

Robert McDonald, of Berkeley county, died testate in 1859, leaving a tract of land of about 121 acres in that county, devised to his brother Andrew McDonald for life, and then to his nephew Robert McDonald, son of Andrewr McDonald, in fee, subject to the dower of the testator's widow.

The devisees both died before the testator. The will was proven and admitted to record; it contained a residuary clause devising his estate to his brothers and sisters, share and share alike.

George W. McDonald, a brother of the testator, filed a bill in July, 1860, asking a partition of the land, and if not susceptible thereof, a sale of the same. He made the remaining brothers and sisters parties defendant, some of whom were alleged to be unknown, and others were desig nated in the subpoena and order of publication as infant defendants, and they were alleged to be greatly scattered over the State and ill the Western States. It does not appear from the record that any guardians ad litem were appointed; no answers were filed to the bill, and it was taken for confessed. The court, on the 4th day of October, 1860, ordered a sale of the land, which was made in December, 1860. The proceedings of the November term, 1865, show that the sale was then reported, from which it appears that one James L. Campbell, being the highest bidder, became the purchaser, at the price of 37 dollars per acre. The report does not seem to have been acted on at this term. At the December term, 1865 which was a special term the court coufirmed the report of sale, at the instance of* the purchaser, and ordered a deed to be made to him. This latter decree also referred the cause to a master to report the amount of money in the hands of the commissioner who made the sale, for distribution.

In March, 1866, Andrew McDonald, Angelina McDonald, aud Benjamin Walker, who were designated as infant defendants in the subpoena and order of publication, and who had since become of age, filed their petition in the circuit court, asking that the decrees heretofore had in the cause be set aside, because the decree of sale was had before the cause was properly matured against the adult defendants, and many [naming them] of those who ought to have been defendants and who were infants at the institution of the suit and the date of the decree; and because no guardians ad litem had been appointed for the infant defendants; and because the land was sold at an inadequate price, and for several other reasons which it is perhaps unnecessary to state here, as this court did not consider them.

The order of publication against the absent defendants in the original suit, was taken out at the June rules, 1860, and the certificate of its publication and posting is dated September 15th, 1860, and the decree of sale was had on the 4th of October following less than one month after the due execution of the order.

Several depositions were taken...