Milham v. Higdon , 131 Miss. 260 ( 1922 )

Sykes, P. J.,

delivered the opinion of the court.

The appellants in their bill ask that they be decreed to be tenants in common with appellee of certain lands therein described and that the lands be sold for a division of the proceeds among the owners. They allege that certain proceedings in court whereby their minority was attempted to be removed in order that they might sell their interests in these lands to appellee were void, and that the deed signed by them authorized by these proceedings was void and a nullity, and they ask the court to hold same for naught and cancel it.

The answer denies that these proceedings removing the disabilities of the minors and that the deed executed by them in accordance therewith were void. It also states that this proceeding was had in order to effect a compromise between these appellants, the appellee, and the mother of appellants- of a suit pending in court relating to the title to these lands, and that, when the minors had signed this deed with their mother, the original bill in the other case was by leave of court dismissed without prejudice.

The petition for the removal of the minority of these appellants was an ex parte petition instituted by their mother, individually, and also as mother and next friend of these minors under section 545, Code of 1906, section 302, Hemingway’s Code. These proceedings were had in 1911 None of the kindred of the minors, except their mother, joined in this ex parte petition. The question here presented is identical with that decided in the case of Hardy v. Pepper, 128 Miss. 27, 90 So. 181. Unless this decision is to be overruled, these proceedings are void. In the Hardy Case a very elaborate suggestion of error was filed which received the most careful consideration of the court and' which was overruled. We think the decision in that case is sound for the reasons therein stated. It follows under that decision that this ex parte proceeding was void

The original bill in which this appellee was complainant involving title to these lands was dismissed without prejudice. No decree in th,at case was entered adjudicating title to these lands. That dismissal in no way adjudicated any rights against these appellants nor estopped them from asserting their title in this case. It in no way adjudicated any right between complainant and the defendants in that case.

In this case the learned chancellor upon pleadings and proof dismissed the bill. In this he was in error. The appellants are either entitled to have the land partited in kind or to a sale of it. The decree is reversed, and the cause remanded, to be proceeded with in accordance with this opinion.

Reversed and remanded'.