Rigby v. Lefevre

Citations

• 58 Miss. 639

Syllabus

<p>.1. Ejectment. Title through decree in chancery. Service on minors. Sheriff''s return.</p> <p>Upon a bill in chancery filed in 1859 against it, as administrator, E., the widow of Gb, deceased, and the minor lieirs of the decedent, to foreclose a mortgage on certain land belonging to G.’s estate, a subposna was issued commanding the sheriff to summon all of the defendants, naming each of them. The sheriff returned the writ with an indorsement thereon in these words: “ Executed, and copies of the within writ delivered to N. and B.” A guardian ad litem was appointed for the minors, and he filed a formal answer for them. A decree was rendered for the sale of the land, and it was sold thereunder, and bought by B. Many years after the sale, the heirs of G., who were the minor defendants to the foreclosure suit, brought an action of ejectment to recover the land, on the ground that, under the Code of 1857, the decree of sale was not valid as to them, because the return on the subpoena did not show any service upon them. In the trial of the action of ejectment, the court excluded from the evidence the record in the chancery suit, offered by the defendant. Art. 64, p. 489, of the Code of 1857 required that “original process shall be served personally on the defendant, if to be found, and a true copy thereof delivered to himif not found, another mode of service was provided. And as to an infant defendant, it was provided that the service should be personal on him, and on his father, mother, or guardian, if he have any in the State. Held, that the fair and reasonable construction of the return on the subpoena is that the writ was “ executed ” as to all of the defendants therein named, except that copies were given only to N. and E., the language following the word “executed” being in addition to, rather than descriptive or restrictive of its meaning.</p> <p>2. Same. Decree based on irregular return of service. Effect thereof.</p> <p>The return of service above construed, th