Hooper v. Hardie , 80 Ala. 114 ( 1885 )

STONE, C. J.

There is nothing in the objection that tin's bill was not filed in time. — Code of 1S7(5, § 3843. The present bill was filed in less than three years after the complainant became of age. The amendment afterwards made and allowed did not annul or abrogate the filing, which was done August 6, 1883 ; several days before the three years limit after Ilardie became of age.

Nor was it necessary that the bill should set forth in what respect the complainant was injured by the first decree, if there was error apparent on the face of it. According to the averments of the bill, and they are sustained by wdiat are averred to be copies from the record of the former suit, almost every step taken was on admissions and consents made by the guardian ad litem. These admissions and consents he had no authority to make. Wo do not intend to say a guardian ad litem can waive nothing, or can make no admissions. What we do affirm is, that when the object of the bili is to sell lands of an estate to pay debts, because of an insufficiency of personal property to pay them, the fact of such debts, and the deficiency of personal assets, must be shown by other testimony than the consent or admission of 'the guardian ad litem of an infant heir. We fully approve both the opinion and decree of Chief Justice Marshall in Bank of U. S. v. Ritchie, 8 Pet. 128.

If the state of the record of the former suit be such as is set forth in the present bill, the decree should be reversed back to the pleadings, that there may be a further and fuller trial on legal testimony.; — McCall v. McCurdy, 67 Ala. 65.

There is no error in the decretal order of the chancellor overruling the demurrer.

Affirmed.