Hardester v. Sharretts

Fowler, J., delivered the opinion of the Court. The question which was intended to be presented by this appeal and the only one which was argued by counsel is whether the order of publication passed the twenty-second of October, 1891, in a certain cause in which E. A. Merry-man was plaintiff and Henrietta A. E. Walker and others were defendants, so far complied with the provisions of the Code, Art. 16, section 112, as-to bind the plaintiff The bill in the case just mentioned was filed for the purpose of obtaining a decree for the sale of the interests of the unknown heirs of the children of a certain Benjamin Hard-ester, and it was attempted to bind them by an order of publication as provided by said section one hundred and twelve. The bill in this case was filed by the plaintiff upon the theory that the decree in the first named case is absolutely void as to him, and that consequently his interest, being one undivided eighth in the land sold thereunder to the defendant, did not pass thereby. The defendant on the other hand claims to have purchased the land in question free from any outstanding interest in the plaintiff or anybody else, and in his answer to the bill he sets up and relies upon the order of publication.

The answer was treated as a demurrer, and appears to have been considered below as raising the question of the sufficiency of the order of publication to bind the defendant. Although the question is presented in an irregular manner, yet, inasmuch as counsel expressed a willingness to waive all irregularities in the mode of its presentation in order to have it decided, we will briefly state our reasons for the view we entertain. To show that the order of publication does not comply with the statute, it seems only necessary to point out the one defect which is most glaring. As we have said the bill was filed against the unknown heirs of the children of Benjamin Hardester, deceased, and, of course, the purpose of ¹⁵⁰ the order of publication was to give notice of the suit to them, and to warn them to appear and defend.

But instead of doing this, the children of Abraham Hardester were notified and warned to appear. It is true, perhaps, as suggested, that this erroneous use of names was an inadvertence of the draughtsman of the order, but whether this be so or not, the result was the same. The order became