Johnson v. McCabe , 42 Miss. 255 ( 1868 )

Peyton, J.,

delivered the opinion of the court.

In this case, it appears that James Johnson, and Mary, his wife, conveyed, together with other property, a certain tract of land, situated in the county of Washington, in this State, to Edward P. Johnson; and that Edward McCabe and Mary It. McCabe, his wife, and Albert S. Johnson and Mary Alice Johnson, minor children and heirs-at-law of James Johnson, deceased, who sue by their next friend, and Edward McCabe, administrator of the estate of James Johnson, deceased, file their bill in the Chancery Court of said county of Washington, against Edward P. Johnson, James L. Johnson, Fitz William Lonsdale, Naimie Lonsdale, his wife, and Bettie Erwin, heirs of Edward P. Johnson, deceased, and Edward P. Johnson, executor of the last will and testament of Edward P. Johnson, deceased, and Fitz William Lonsdale, executor of the last will and testament of James Johnson, deceased, to enforce the vendor’s lien on said land for the unpaid purchase-money.

That said Bettie Erwin was an infant under the age of twenty-one years, and that process was returned by the sheriff executed as to her, “ by delivering a true copy of the same, for Bettie Erwin, to Lonsdale, he being a free white person above the age of sixteen years, then and there being one of her family, and at the usual place of residence of the within-named Bettie Erwin, she being absent from her usual place of residence, and not found in my county, this 25th April, 1867.”

And that on the 22d day of November, 1867, F. B. Gray was appointed by the court guardian ad litem for said Bettie Erwin, and on the same day the said guardian filed the following answer : “ That he knows nothing of the matters and tilings in complainants’ bill contained, and not confessing or admitting any of the allegations therein contained, answering, says that if the rights of his ward are to be in any manner affected by the same, he would ask that complainants be held to strict proof; and now having fully answered, he would pray to be discharged, with his reasonable costs.”

The answer of the other adult defendants admits the allegations of the bill, and on the 23d day of November, 1867, a commissioner was appointed by the court to take and compute the amount of principal and interest due to the complainants. And on the same day the report of said commissioner was confirmed by tbe court, aud a decree rendered, directing a sale of tbe land conveyed, or so' much thereof as may be necessary to pay tbe amount of tbe purchase-money found to be due to'the complainants, and costs of suit, unless tbe same is paid by tbe defendants to tbe complainants within ten days from tbe date of tbe decree.

From this decree tbe cause is brought here by appeal.' And tbe appellants assign various errors, tbe first, second, and third of which call in question the validity of tbe service of process on tbe infant defendant, Bettie Erwin, and of tbe appointment of tbe guardian ad litem for her, and of bis action in behalf of bis ward.

Our statute provides that original process shall be served personally on tbe defendant, if to be found, and a true copy thereof delivered to him. Tbe delivery of a copy of tbe process by the proper officer to an adult defendant is deemed good personal service, within the extent and meaning of the statute. But if tbe defendant be an infant, tbe process must not only be served on him personally, but on bis father, mother, or guardian, if be have any in this State. Bev. Code, 489, art. 64; and 544, art. 27. Hence it will be seen that tbe service of tbe process upon tbe infant was not in conformity with tbe statute; and as art. 52 of tbe Bev. Code, 548, contemplates tbe return of process legally executed, it is insufficient to authorize the court to appoint a guardian ad litem for tbe infant. Tbe service of process upon the infant, tbe appointment of a guardian for her, and bis action as such on behalf of tbe infant, are therefore erroneous.

Tbe answer, filed by tbe guardian ad litem is not a proper answer. It is tbe infant that is required by tbe bill of complaint to answer it, and although she is not presumed to be of sufficient discretion to prepare her answer herself, and must therefore do this by her guardian, yet it must be her answer by her guardian, and not tbe personal answer of the guardian. Tbe answer of tbe guardian ad litem is bis personal answer, and not tbe answer of bis ward, Bettie Erwin. Tbe answer in such cases generally is, that tbe infant (not tbe guardian) knows nothing of tbe matter, and therefore neither admits nor denies tbe chargés, but leaves tbe plaintiff to prove them as be shall be advised, and throws himself on the protection of the court. Mills v. Dennis, 3 Johns. Ch. Rep. 367. The answer in such cases is usually a general one, and is in the following form:

“ The answer of A., an infant under the age of twenty-one years, by B., his guardian, to the bill of complaint of C. against him in chancery, exhibited.

“ This defendant cannot admit any of the matters and things alleged in the said bill, and being an infant of tender years, submits his rights to the protection of this court.”

This answer is sworn to by the guardian, unless the bill waives the necessity of an answer under oath.

The fourth assignment of error is, that “ there was no proof whatever to sustain the allegations of the bill, and as the guardian ad litem did not admit them, it was erroneous to render a decree affecting the rights of the minor without such proof.” This assignment of error is w^ell taken.

As a general rule, the answer of a defendant in a suit in chancery being a deliberate statement on oath, is evidence against him of all the matters it contains. But it is only the answer of a person sui juris that can be treated as an admission of the facts, so far as to dispense with other proof of them, and therefore the answer of an infant by his guardian cannot be read against the infant, for the reason that he cannot make an admission which ought to bind him. The answer of an infant by his guardian ad litem is considered a pleading merely, and not an examination for the purpose of discovery. It is neither evidence for nor against him. And the facts which entitle the complainant to a decree must be established against infants by legal proof. Neither the guardian ad litem nor any other person has power to waive this proof, or consent to a decree against the infant without it. This is an inflexible rule of law, which cannot be evaded. Mills v. Dennis, 3 Johns. Ch. Rep. 367; Tuttle v. Gannett, 16 Ill. Rep. 354. The record in this case contains no evidence either before the court or the commissioner to sustain this decree against the infant.

The decree will therefore be reversed, and the cause remanded.