Prudential Ins. Co. v. Gleason

• Decision Date: 20 March 1939
• Docket Number: 33445
• Citation: 187 So. 229,185 Miss. 243
• Court: Mississippi Supreme Court
• Parties: PRUDENTIAL INS. Co. v. GLEASON et al

187 So. 229

185 Miss. 243

PRUDENTIAL INS. Co. v. GLEASON et al

No. 33445

Supreme Court of Mississippi

March 20, 1939

APPEAL from the chancery court of Sunflower county HON. J. L WILLIAMS, Chancellor.

Suit by Woods C. Eastland against Betty Eastland Gleason and others to set aside an ex parte judicial partition proceeding and for other relief, wherein the Prudential Insurance Company filed a cross-bill. Decree for plaintiffs, and the insurance company appeals. Reversed and cause remanded.

Reversed and remanded.

Moody &amp Davis and Gordon L. Lyon, all of Indianola, for appellants.

Where it is true the chancery court, in guardianship and partition proceedings, exercises powers granted by the statute, yet, in the exercise of such powers, the court acts as a court of general jurisdiction and not as a court of special and limited jurisdiction.

Ames v. Williams, 17 So. 762; In re Heard's Guardianship, 163 So. 685; Paddock v. Shields, 57 Miss. 340; Sweatman v. Dean, 38 So. 231; Broom v Board of Supervisors, 158 So. 344.

When a court of general jurisdiction has jurisdiction of the subject matter and the parties, though some are minors, a consent decree is as valid and binding on the minors as if they were adults.

Thompson v. Maxwell Land Grant & Ry. Co., 42 L.Ed. 539.

The distinctive disability of an infant is in relation to his contracts, affecting his personal liability and his property, and hence the law gives him the right to avoid contracts, made during infancy. The other party to the contract is bound so long as the infant adheres to it. Inasmuch as the disability is for the protection of the infant and his property. "It has been held that an infant may be an agent for another; and that his contracts, as such, if otherwise valid, will bind his principal."

Talbot v. Bowen, 10 Am. Dec. 747; 21 R. C. L. 819.

The office of a guardian is a ministerial office and any discretion required therein is not left to the guardian but to the court. It is a well established rule that a guardian is merely an agent or an officer of the court and in all cases, and, especially is it true in the case at bar, the minor in acting as a guardian is acting for the court and as an officer of the court.

Harrison v. Harrison, L. R. A. 1916E 854; 14 R. C. L. 221, sec. 8.

Our statute relative to the qualifications of a guardian does not prohibit a minor from being a guardian.

Section 1868, Code of 1930 (Hutchins Dig. 504, section 125); Farrer v. Clark, 29 Miss. 195; Wimberly v. Boland, 16 So. 905.

14 R. C. L. 221, sec. 8, holds that "an infant may hold such public offices as are ministerial and call only for the exercise of executive skill and diligence."

Wimberly v. Boland, 16 So. 905.

The fact that Betty Eastland was a minor at the time she was appointed guardian is not disclosed by the record in Cause No. 4415. Hence, if it be conceded, which it is not, that the court was without jurisdiction to appoint Betty Eastland, a minor, as guardian, can the lack of jurisdiction be shown by evidence aliunde the record or by collateral attack? The decisions of the Supreme Court of this state answering this proposition in the negative are numerous and in harmony.

Ames v. Williams, 17 So. 762; Cotton v. Harlan, 87 So. 152; In re Heard's Guardianship, 163 So. 685.

With reference to the construction of judgments and decrees in general it is a well settled rule that, if possible, that construction which will support the judgment or decree will be adopted rather than one which will destroy it. All presumptions are in support of the judgment and, as in the case at bar, a construction adopted or acquiesced in by the parties will not be changed without strong reasons.

34 C. J. 502 and 503, 5081 and 509.

As to decrees appointing guardians the law is that the court may in its order of appointment impose reasonable conditions and restrictions on the guardian. This is exactly what was done in the decree appointing Betty Eastland guardian. Whether the restriction or condition was reasonable or not could have no bearing on the case at bar, because, in the first place, such an issue cannot be presented in a collateral attack, and in the second place, if the condition or restriction is unreasonable such would or could not be imposed. Under no conditions would such a restriction or condition render the appointment void.

28 C. J. 1087; Ames v. Williams, 17 So. 762; Cotton v. Harlan, 87 So. 152; In re Heard's Guardianship, 163 So. 685; Wimberly v. Boland, 16 So. 905.

The Supreme Court of this state held in Sweatman v. Dean, 38. So. 231, that a partition proceeding was not subject to collateral attack.

Paddock v. Shields, 57 Miss. 340; Cocks v. Simmons, 57 Miss. 183; Johns v. Harper, 61 Miss. 142; Tate v. Bush, 62 Miss. 145.

It has frequently been held that the representation of the infant plaintiff by a next friend or guardian and, when appointment by the court is necessary, the regularity of such appointment, are matters of procedure and not of substance, and that an objection that the plaintiff is an infant, and sues without next friend, must be made by plea in abatement and is waived by pleading to the merits.

14 R. C. L. 280-281; 31 C. J. 1121-3; McLemore v. Chicago Railroad Co., 58 Miss. 514; Eubanks v. McLeod, 63 So. 226; Eubanks v. McLeod, 69 So. 289.

If several persons entitled to compel a partition may join as complainants, why not all such persons. It is true this proceeding might result in the anomaly of a suit or action in which there was no defendant, and this has been thought a sufficient reason for refusing to entertain it. The reason, being purely technical, seems unworthy of serious consideration, and has been overruled whenever presented for judicial consideration.

30 Cyc. 201; Waugh v. Blumenthal, 28 Mo. 462; Geer v. Geer, 14 S.E. 679; Moor v. Polagge, 41 S.W. 465; Blagge v. Shaw, 41 S.W. 756.

The fact that the proceeding was ex parte cannot be objectionable.

Section 3521, Code 1906 (Sec. 2920 Code 1930); Section 3522 Code of 1906 as amended by Chapter 130, Laws 1918; Sec. 3523, Code 1906; Sec. 3524 Code of 1906 (Section 2925 Code of 1930).

Under the proceedings in the case at bar the minors were represented by their guardian and it was not necessary that they be parties in any other manner.

We respectfully submit that the bill of complaint in this case should have been dismissed and the relief prayed for by the appellants in their cross-bill should have been granted. The appellant Insurance Company, through no fraud or bad faith on its part, has, by relying on the records and solemn judgments and decrees of the court below in Cause No. 4415 (the guardianship matter) and Cause No. 4416 (the partition proceeding) become the purchaser of the 111.17 acre tract of land in controversy. Any effort tending to impeach the proceedings had in those two causes by evidence and facts that do not appear on the face of the record is untenable.

Sanders v. Sorrell, 3 So. 661; Cocks v. Simmons, 57 Miss. 197.

If the minor has in possession any of the consideration received, when he disaffirms his contract, or after he becomes of age, he must return it. By the act of disaffirmance, he loses the right to retain that which has been received, and if he holds on to the consideration, or disposes of it after majority, it will amount to a ratification of his previously voidable contract.

Brantley v. Wolf, 60 Miss. 420.

There is a vast difference between the consideration passing from the minor during minority and after majority. During minority the law affords protection for the reason of inexperience and youth. But after majority, the reason of the law cases, and ratification of a voidable contract results from disposing of the consideration, of an executed contract, after attaining majority.

The doctrine of a court of equity is that the heir who received the price of his real estate, sold by his guardian, cannot hold on to the money and at the same time recover the land on account of some defect in the judicial proceeding under which it was sold.

Douglas v. Bennett, 51 Miss. 680; Gaines v. Kennedy, 53 Miss. 103.

The cross-complainant, the Prudential Insurance Company of America, acquired the title to the land conveyed to Mrs. Pentecost. Therefore, as held in Gaines v. Kennedy, 53 Miss. 103, the equitable estoppel can be availed of by it, as a subsequent vendee.

If, therefore, the deed executed to Mrs. Pentecost wherein the 111.17 acre tract (which is the land described in the bill of complaint is conveyed cannot be disaffirmed by Betty Eastland Gleason, Oliver Eastland, and Woods C. Eastland II, then their interest in that land, on the date the bill of complaint was filed, is vested in the Prudential Insurance Company, the appellant, who has title to that land through Mrs. Pentecost. Hence, when the cause was finally heard below, the Prudential Insurance Company, the appellant, was vested with a four-sixths interest (the interest of Mrs. Pentecost and the above three children) and Viola Eastland Harris and Chester Eastland were each vested with a one-sixth interest. Therefore, even thus far considered, the partition decree, which only allots a one-sixth interest to the appellant, must be reversed.

Voluntary partition which is not binding on all co-tenants is not binding on any of them. Such as the effect of a partition by adult heirs which the minor heirs refuse to ratify on coming of age, of an attempted partition by deed signed by persons under desirability without the formalities prescribed by law, or of an attempted partition by deed not executed by all the grantors.

47 C J. page 280, section 35, page 331, section 154; Freeman, Cotenancy & Partition, 2 Ed., sections 419 and 508; 20 R. C. L., page 719,...