Tomblin v. Peck
| Citation | 80 S.E. 450,73 W.Va. 336 |
| Parties | TOMBLIN v. PECK ET AL. |
| Decision Date | 02 December 1913 |
| Court | Supreme Court of West Virginia |
Submitted November 19, 1913.
Syllabus by the Court.
In the exercise of the right of an infant to show cause against a decree under which his land has been sold, he cannot set aside a sale fairly made to satisfy valid indebtedness for a mere technical error in procedure.
If, in a suit to sell the real estate of a decedent for the satisfaction of indebtedness against it, the three infant heirs were all made parties to the bill, two by their proper names and the third by a wrong name, and a guardian ad litem duly appointed filed answers for them, the mistake as to the name is a mere misnomer, correctible by amendment, and the party so erroneously named is deemed to have been brought within the jurisdiction of the court.
An infant improperly appointed administratrix of an estate is nevertheless an administratrix de facto, and her acts as such are valid and binding, and the appointment cannot be collaterally assailed.
Appeal from Circuit Court, Logan County.
Bill by Mary Tomblin, an infant, against J. E. Peck, Sr., and others. From decree for plaintiff, the defendant named appeals. Reversed, and bill dismissed.
F. C Leftwich, of Huntington, and J. E. Peck, Jr., of Logan, W Va., for appellant.
Chafin & Bland and J. S. Miller, all of Logan, for appellee.
POFFENBARGER P.
This suit for partition of three tracts of land, containing in the aggregate about 700 acres, by an infant suing by her next friend, involves and grows out of proceedings in two former suits and proceeds upon the theory of lack of jurisdiction in the court to pronounce certain decrees in the last one of the two prior causes. It is the exercise of the right of the plaintiff, as an infant, to show cause against the decree in that suit. Treating the decrees therein as void, the circuit court granted the relief prayed for in the bill, and the purchaser of the land at a judicial sale in the last of said former suits has appealed.
The land was sold as the property of G. A. Farley, at the instance of creditors in a suit commenced May 19, 1888, and J. E. Peck became the purchaser, paid the purchase money, and obtained the right to a deed for the land which was never executed. Afterwards, on June 29, 1891, Farley, the former owner and debtor, repurchased from Peck part or all of the land for $1,350, of which $500 was paid, and for the residue of which he executed his three notes and took from Peck a title bond. In the next year Farley died without having paid the balance of the purchase money and left surviving him his wife, Alice Farley, and three children, William, Flora, and Mary. Then on January 6, 1893, Peck instituted a chancery suit to compel specific performance of the contract evidenced by the title bond and purchase-money notes, making Alice Farley, the administratrix of the estate of G. A Farley, Alice Farley, his widow, in her own right, Flora Farley, William Farley, and Alice Farley, parties to the bill, describing the last three as infants. One of these infants was improperly named. She was proceeded against as Alice Farley, and her name was Mary Farley. A guardian ad litem was appointed for the infants and filed an answer for them. There was a decree of sale, and Peck again became the purchaser for $850. The sale was confirmed, the purchase money applied on the costs and debt, and a commissioner was directed to execute a deed, but never executed it.
The bill proceeds upon the assumption that the plaintiff was not a party to the suit instituted by Peck, and that her half-sister, Annie Farley, was also omitted, in consequence whereof certain interests in the land, her own and her half-sister's, were not within the jurisdiction of the court nor sold. The bill alleges the half-sister, Annie Farley, died some time after Peck became the purchaser, and the plaintiff and her brother and sister inherited her part of the land, so that at the time of the institution of this suit Peck was the equitable owner of one-half of the land, and the plaintiff and her brother and sister held the legal title to all of it and the equitable title to the other one-half. The bill exhibited the proceedings in the prior suit instituted by Peck. It was answered by him and also by William Farley and Flora Dingess (née Farley), the brother and sister of the plaintiff, who united in the prayer for partition. There was a reference to a commissioner who ascertained and reported that Peck had resold to G. A. Farley only the surface of the land for the sum of $1,400, $500 of which he paid in cash, and that there was due him, after deducting $5 for rent and $204 for timber, $1,752. This report was excepted to by the plaintiff and Flora Dingess and William Farley, because the commissioner failed to charge Peck with interest on the value of the timber taken from the land and because the commissioner found Peck was the equitable owner of the mineral in the land and had resold to Farley only the surface thereof. The court sustained the second exception, corrected the report, and entered a decree in favor of Peck for the sum of $1,752, with an order for sale of the land in case of default in the payment of said sum within 30 days.
As the bill alleges failure to make Annie Farley, one of the heirs, a party to the suit, and her subsequent death, in consequence of which the plaintiff and her brother and sister inherited her interest in the land, the demurrer to the bill was properly overruled. But for this allegation it may be possible the demurrer could have been properly sustained, inasmuch as the record exhibited with the bill might be sufficient to show the plaintiff herself had been made a party by a wrong name.
In fact, Annie Farley died before the death of her father, and all of the interested parties were before the court in the suit brought by Peck, but one of them was there by a wrong name. There were but three children, and three were made parties as infant defendants. The process was personally served upon all of them, and a guardian ad litem put in their answers. Obviously, therefore, there was a mere misnomer as to Mary Farley, the plaintiff in this suit. Failure to discover this and correct it by an amendment was a technical error, but there was no want of jurisdiction. Although sued by a wrong name, she was before the court, and an answer was put in for her by her guardian ad litem. Chapman v Branch, 78 S.E. 235, recently decided and not yet officially reported. A technical error, such as this, however, does not justify the setting aside of the sale under the decree in the cause in which it was committed. The indebtedness for which the land was sold is established beyond the shadow of a doubt, and it is neither denied nor questioned by the plaintiff in the bill in this cause. Moreover, it was a purchase-money debt expressly charged upon the land; the vendor holding notes for it and withholding a deed of conveyance. So far as this record shows, there was no possible defense to make in that suit, nor is anything shown against the fairness of the sale therein. No inquiry arose as to whether a sale would promote the...
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