Shaefer vs. Gates and Wife, 2 B. Mon 453

Chief Justice Eobertson delivered the Opinion of the Court. This is an appeal from a judgment in favor of the demandants, Guerdon Gates and wife, for four-fifths of a lot in Louisville, rendered on a verdict on the general mise, in a writ of right, demanding the entire lot, against the tenant, Christian Shaefer. A purchase under a void judgment confers no xightof entry, & any entry under such purchase is void and a disseizin. Demandant in a writ of right may recover to such extent as he may show title, tho’ it be less than his writ demands. Two general objections are urged against the judgment. 1st.

That there was no actual disseizin, and that the judgment, in such an action and on such an issue, could not be rendered for a part of the land involved in the issue; and, 2nd, That the land was sold and conveyed in the year 1813, under an execution on a judgment against Sullivan’s heirs, of whom Mrs. Gates was one, and that the judgment, however erroneous, was not void. These objections will be considered in their numerical order. 1. There was proof of actual seizin by the female demandant and her co-heirs, antecedently to the entry of the purchaser under the judgment against them.

That seizin was certainly sufficient for maintaining this action; and we are authorized to presume an actual disseizin, if the judgment against Sullivan’s heirs was void; for without a valid judgment, the sale and conveyance passed no title, and, of course, the entry by the purchaser on the actual possession of the heirs was tortious and should be deemed an actual and illegal disseizin.

And the statutory law of this State having abolished the unreasonable common law rule that, unless a plaintiff prove title to as much as sued for, he shall recover nothing—a demandant in a writ of right, as well as a plaintiff in any other form of action, may recover Jess in extent or interest than his writ demands or the mise embraces: Green vs Liter, (8 Cranch, 229.) 2. William Sullivan, the ancestor of Mrs. Gates, died intestate in the year 1804, the legal owner of the lot now in contest, and having five children, all infants, and of whom she was the youngest. In February, 1813, Gabriel J.

Johnson brought an action against the decedent’s administrator and infant heirs, all of whom were then nonresidents, except one who had intermarried with James W. Denny, and resided in Louisville. On the 10th of February, 1813, the writ was issued against the administrator, Denny and wife, and the four other infant heirs, and was returned executed on all except the said four infants.' On the day after the issuing of the writ, an order was made nominating. Denny guardian ad litem, to defend for those four non-resident infants.

And the record shows that, on the 6th of May> 1.813, “the defendants not appearing,” a judgment by default was rendered against the administrator and all ’the heirs of W. Sullivan. The appellant holds all the title acquired by the purchaser of the lot under an execution on that judgment, and in virtue of which the lot was sold by the sheriff. No person is a party to a suit or bound by a judgment therein, without voluntary appearance, service of process, or judicial notice of some sort.

The appointment of a guardian ad. litem to infants, who are never served with process, does not make them parties, and especially where such guardian does not make his appearance in the case by plea or otherwise show his acceptance of the appointment. The service of sherffffon'one1^ f^ld{,aef0red hzj£ appointment as such, is unauthorized, and a return to that efiect extra official and void, and furnished no evidence to such person that he was guardian ad litem. All the co-heirs of Mrs.

Gates having died childless and intestate, their titles, all passed to her by survivor-ship. .Upon these facts it is evident that, if the judgment against four of the heirs of Sullivan should be deemed merely erroneous, the demandant was not entitled to the-recovery now sought to be reversed, but that, if that judgment should be adjudged uñid as to these four infant heirs, upon whom there was no service of process, the judgment, as rendered in this case, for four fifths of the lot, was right and should be affirmed.

In a legal or available sense, no person is a party to a suit without either an- appearance or judicial notice of some sort. And there can be no doubt that a judgment against a person who was never made a party is utterly void. . ■ ■ The record of the judgment of 1813, certified to be a true and perfect transcript, does not show that the four infants, for whom a guardian ad litem was nominated, were ever served with process; and their non-residence proves affirmatively, that there had been no service on them or any of them.

If. they could be deemed parties they must, therefore, have been made so only by the nomination of Denny as their guardian ad litem. But there is not a vistige of proof of.his acceptance or even knowledge of the trust allotted to him. And the record, moreover, expressly shows that he neither made any defence nor appeared in the action, either as party or guardian. It is true that the official return states that the writ was served on Denny as a party and also as a guardian ad litem.

But that return, as to service on him as guardian, is necessarily false or void: 1st, because the writ was not against him as guardian ad litem, and he was not even nominated guardian until after the writ was issued, and does not appear even to have accepted or assumed that relation; and, 2ndly, because the sheriff, having no apparent authority to serve the writ on Denny as guardian, an actual service on him in that character, was void, and the return thereof, altogether extra-official.

Notice to one, of his appointment as guardian, ad litem, does not, in any available sense, make those for whom he has been appointed, defendants in any judgment against them. The record, to bind infants, must show that they were parties to the action in some legal and effectual shape. The Court should never render |udgment against Infants, but on plea filed for them, or on being satisfied by a guardian ad litem, that after vigilant effort he could ascertain no useful defence to the action.

But if that return could be accredited for any purpose, it imports only that the sheriff, having served the writ on Denny and understanding that he was' sued in his own right, and had ulso been named as the representative of the non-resident infants, supposed that the actual service of the writ on him was eo-extensive, in effect, with his two-fold character in the suit.

But the writ not being against Denny as guardian, nor describing him as such, the service of ii, which was all the sheriff was authorized to do, was no notice to him that he had been nominated guardian ad litem to defend for the non-resident infants. The return, therefore, even had it been official and true, furnishes no proof of any notification to Denny of his nomination as guardian ad litem. But had Denny been notified of his nomination as guardian, he was not bound to accept the responsible trust; and without his acceptance, the non-resident infants could not have been parties in any legal or available sense.

And it is indispensable to the validity of the judgment against them, that the record of it should show that, in some legal and effectual mode, they had leen made parties to the, action.

The record does not intimate even Denny’s acceptance; and his non-appearance is evidence rather of his non-acceptance, for had he accepted, it was his duty to appear, and it was also the-duty of the Court, either to compel his appearance or substitute' some other person who would appear and represent the infants, either by making a proper defence or by satisfying the Court that he had been vigilant and faithful, and had ascertained that no defence could be usefully made.

This case'differs essentially from that of Bustard vs Gates and wife, (4 Dana, 439.) In that case, in which a judgment had been rendered against the same non-resident and infant heirs of William Sullivan, a guardian ad litem was notified of his appointment, accepted, app&ared, and defended the suit. In this case the record not only does not show that Denmj, who was nominated guardian, either accepted or was notified of the nomination, but it proves conclusively, for all time, that he neither made defence nor appeared to the action.

Gan such ex parte, surreptitious judgment against non-resident infants, without any defence or appearance for them, or even notice to them or any person acting or undertaking to act for them, be deemed valid and binding on them? Can it be gravely alledged that they were ever made parties to the suit? We think not. This, it seems to us, is the inevitable deduction from the facts exhibited by the record. And had the question as to the validity of the judgment been litigated within a year after it was rendered, we cannot doubt that the judicial response must have been, una voce, that the judgment was void.

Lapse of time may cure irregularities in judicialproeeedings, but not such as appear to have been void, and no suggestion o£ any mutilation by lapse of time. Time may authorize the presumption of ant extraneous fact which the record does not show, and which was indispensable to the validity of a judgment, and which the record should exhibit. Did the lapse of 23 years prior to this suit, infuse vitality and vigor into that which was thus born dead? Has a judgment, once void, been made valid by time?

Justice and the repose of society have induced the adoption of many legal presumptions; and among these is that which after a long lapse of time, cures irregularities injudicial proceedings, and assumes that every thing that was done was “solemnly and rightly done,” and that, also, which even presumes, in some rare cases, that an unfound record once existed. But time can never authorize the presumption that an existing record, apparently complete and perfect, is not-substantially what it always was, and especially that any thing which it expresses or imports is false.

The legal maxim “omnia presumuniur rite et solemniter esse acta donee probitur en contrarium,” applies not to such a case. To sustain an ancient judgment, time may authorise the presumption of an extraneous fact which the record does not contradict, and which it was not indispensable to the validity of the judgment that the record should exhibit. This is as far as either reason or law will presume as to facts not appearing in an existing and apparently unmutilated record of a judgment. And no such presumption can, in our opinion, aid the record in the case now before us.

This Court will not presume that a guardian ad litem appeared for infante, when the recordshows the reverse, expressly to npiold a judgment. That which wa's void’ah initio in tractu temporis non convalescit. Pirtle and Duncan for appellant: Thruston and Loughborough for appellees. We cannot presume-that Denny, as guardian ad litem, or otherwise, appeared to the action, for the record affirms expressly that he did not appear, and that the judgment was by default.

Nor, for the reasons already suggested, can we presume that he either acted as guardian or accepted the nomination, or even had notice of the fact that he had been nominated; and the sheriff’s return itself strongly corroborates this conclusion, for the fact that such a return was procured and recorded as evidence of notice tends strongly, if not conclusively, to prove that there was no other notice nor any other evidence of notice to Denny of his nomination as guardian.

But the record proof that he never appeared is record evidence also of the resulting fact that he never acted or even assumed to act as representative of the infants in defending that suit for them or making any preparation for defending it. And if, in any such case, an implied acquiesence could aid the judgment, the continued disability of Mrs. Oates would be sufficient to repel the force of any such presumption in this case.

It seems to us, therefore, that the only judicial deduction now must be, as it should have been the day after the date of the judgment, that the non-resident infants, even if the Court had jurisdiction over them, were never, in fact or in law, made parties to the suit. The judgment as to them was, therefore, void. And such a judgment, adjudged to have been once void on such grounds, cannot even yet be deemed valid.

To such a case, as much as to any other, should be applied the legal maxim that—that which was void “ab initio, in tractu temporis, non convalescet.” We are, therefore, of the opinion that the demandants were entitled to the judgment, as rendered in their favor, for four-fifths of the lot; Mrs. Denny’s fifth having passed to the purchaser under the execution, because, as she was a party, the judgment on which that execution was issued, was not, as to her, void. It is, therefore, considered that the judgment for the demandants be affirmed.