1. Mrs. Morehead brought her equitable petition against A. S. Allen and J. H. Allen. The plaintiff alleged, among ■other things, as follows: Allen, the father of the defendants, was heavily in debt. In 1871, in order to hinder, delay, and defeat his creditors, he made a deed conveying certain lands to his wife for life, with remainder to their children. This intent was known to the wife. The deed purported to be for a consideration, but was really voluntary. Lathrop & Co. were among his creditors at the time. Later they obtained judgment in the United States court, caused the land to be levied on, and had it sold at marshal’s sale, and became the purchasers. An agreement to compromise was effected between Lathrop & Co. and Allen and his wife. The wife, for herself and as next friend of the children, filed an equitable petition, reciting, among other things, that the marshal’s sale left it in doubt as to who might finally hold the lands; and obtained an •order authorizing her to make a conveyance to Lathrop & Co., ■covering both the life-estate and remainder in 700 acres of the land, upon their making a conveyance to her for life, with remainder to the children, covering 500 acres. This was done. The children are now asserting that they have title in remainder to the 700 acres, and that the proceedings and conveyance were invalid as to them. Plaintiff holds the land as the successor of Lathrop & Co. Other reasons for filing this proceeding to quiet the title or remove a cloud from it were alleged. It was prayed, that the deed of Allen, made in 1871, in so far as it covered the land claimed by plaintiff, and in so far as it purported to convey title in remainder to the defendants, be decreed to be voidthat defendants be
The bill of exceptions alleges that it was agreed that the plaintiff liad the same title to the lands in dispute that Lathrop & Co. held,, and that she had succeeded to their title by deed or inheritance;, and also that “it was agreed that all points and exceptions as to nonjoinder and misjoinder of parties be waived, and that the case proceed to trial as though all proper parties were before the court;”' also that the presiding judge should pass on the questions, both of law and fact, without a jury. Evidence was introduced on the various subjects of controversy, including evidence as to the marshal’s deed, the financial condition of Allen at the time he made-the deed to his wife and children, and the consideration thereof. The bill of exceptions recites as follows: “At the conclusion of' the testimony, and after the argument of counsel, the court held
From the foregoing statement touching -the pleadings and evidence, it is clear that the whole question of the title of the plaintiff and defendants was put in issue; that the plaintiff did not rely solely upon the order of the judge of the superior court and the deeds made under it, but also set up the marshal’s deed, alleged that the deed made by Allen to his wife and children was fraudulent, and sought relief if the deed of Mrs. Allen to them were held void as to the remainder. It was sought to settle the entire question; and all questions as to parties were waived. We do not clearly see why the judge of the superior court held that a part of the issue thus raised could not be considered, and confined his consideration to only one branch of it.- In this we think he erred.
2. Counsel for plaintiff in error contend that the proceedings and order under which the life-tenant made a deed seeking to convey both the life-estate and remainder, can not be treated as a proceeding and order of a judge at chambers, but must be considered as a proceeding and decree in open court. Counsel on both sides have in their briefs discussed at some length the effect of these proceedings and this order, and whether they had any such effect in law as to bind the children and prevent their asserting the invalidity of the conveyance by their mother of their remainder interest. It is contended on behalf of the plaintiff in error that this point was adjudicated by the judge of the superior court in his decree in this ease; that no cross-bill of exceptions was filed; and that therefore it is conclusively determined, whether the decision as to that point be correct or not. We are not quite clear as to the exact intention, of the learned judge of the Macon circuit in
As this case will be returned for another trial, we do not now .adjudicate the status of the proceedings referred to, or enter into ,a discussion of the power of a court of equity in regard to the estates of minors upon regular proceedings or in a regular case in ■open court, with proper parties present. We have thought it proper to discuss them as far as stated above, because of the contentions of counsel in regard to them, in connection with the proceedings themselves and the decree of the court.
3. Counsel for defendants in error suggest in their brief that •even if the action taken should be treated as a regular proceeding in equity, the minors were not served. But it has been held that prior to the act of 1876 (Civil Code, §4987) the appointment of and service on a guardian ad litem was in accordance with the practice of the courts of equity at the time, and was sufficient. Harvey v. Cubbedge, 75 Ga. 792; Adams v. Franklin, 82 Ga. 168. The act of 1876 has been treated as changing the practice and requiring service upon minors; at least unless otherwise provided by the legislature. What was said in Furr v. Burns, 124 Ga. 745,
4-5. Under the view which we have taken there was no error in overruling the demurrer to the defendants’ answer nor in allowing' the amendment and evidence in support of it. The plaintiff in the present case alleged, that Mrs. Allen filed the petition to the judge of the superior court on behalf of herself and as next friend of her children, to ^obtain the order to make the deed; that in making the agreement with Lathrop & Co. she had the advice and assistance of able counsel, and that he prepared the petition for her. On behalf of the children it was competent to deny this, and to show that it was not true. The mother may have ratified the proceeding, if she did not authorize it, so far as she was concerned; hut the children could show that she gave no authority for any petition or proceeding on their behalf, and that no ratification bound them. It was not a proceeding by her to set aside the transaction, for fraud or duress, but a denial by the children of the allegations' of the plaintiff as to the history of how the order was obtained.
6. The evidence of Mrs. Allen was objected to on the ground that she was an incompetent witness, W. D. Allen, J. L. Warren, and W. S. Wallace, the attorneys, who filed the petition for the order, being dead. Mrs. Allen was not a party 'to the case, nor were the representatives of any of the three persons alleged to be dead. It was agreed that the plaintiff had acquired the title which Lathrop & Co. originally had, “by deed or inheritance.” Whether she succeeded to Warren’s interest as a transferee does not appear. The petition asked no relief against Mrs. Allen, nor made any claim as against the interest held by her. It prayed relief only as to the remaindermen and their interests. It is true that it was agreed that no point should be made as to non-joinder of parties; but this could only affect the parties before the court. Under the circumstances there was no error in holding her a competent witness.
Judgment reversed.