on the record, whereby the error in process | dictional, so as to deprive purchasers of the and bill could, on motion, have been cor- protection of section 8, chapter 132, Code rected, certainly if the right party has been 1906, defeating their title. served, or, as in this case, where no process was necessary. 1 Daniell, Ch. Pl. and Pr. 430; section 13, chapter 125, Code 1906; Ferrell v. Ferrell, 53 W. Va. 515, 44 S. E. 187. As was the case in Alexander v. Davis, 42 W. Va. 465, 26 S. E. 291, a decree in the cause recites filing of the answer of the guardian ad litem, but no answer is found in the record. It was held that the recital of the decree was not conclusive, the certificate of the clerk making no allusion to the absence of the answer. The decree in that case was not treated as void, but voidable only, entitling the infant defendants, within six months after reaching their majority, to show good cause for setting it aside; but it was not intimated that because of the absence of the answer there was lack of jurisdiction to pronounce the decree complained of. It was regarded as error only. And so with respect to decrees in McDonald v. McDonald, 3 W. Va. 676, Myers v. Myers, 6 W. Va. 369, and Roberts v. Stanton, 2 Munf. (Va.) 129, 5 Am. Dec. 463.

[5] We find that in most jurisdictions, in practically all, except where controlled by statute, the omission to appoint a guardian ad litem, or irregularities therein, are not regarded as jurisdictional, but amount to reversible error only, not going to the jurisdiction of the court. 22 Cyc. 641; 15 Am. & Eng. Ency. Law, 9, and cases cited in notes. We have examined most of these cases and find them supporting the text. Examples of those cases controlled by statute, and per contra, are Dohms v. Mann, 76 Iowa, 723, 39 N. W. 823, 825; Roche v. Waters (Md.) 18 Atl. 866; Brown v. Sceggell, 22 N. H. (2 Fost.) 548. Apropos to this discussion we held in Boal v. Wood, 70 W. Va. 383, 73 S. E. 978, that "Where the court once legally acquires jurisdiction of an unborn heir by representation through living heirs of the same class, its subsequent birth without thereafter being made a direct party to the cause does not divest the court of jurisdiction to decree against it, though to do so is error."

But it is said, that as Wilkinson was a defendant and interested and antagonistic, his appointment as guardian ad litem for the infant defendants was illegal, rendering the decree of sale void, not merely voidable. For this proposition appellants rely on Plant v. Humphries, 66 W. Va. 88, 66 S. E. 94, 26 L. R. A. (N. S.) 558. But it does not support the proposition. That case simply holds that if a guardian ad litem purchases at a sale the infant's coal the sale will be voidable not void. No such question is here involved.

While these errors relating to misnomers, want of a proper guardian ad litem, and a proper answer by him, may amount to re

[6] As to the second ground of relief, relating to mineral rights and larger interests in the surface, including timber rights, than the decree of sale authorized, or the commissioner, appointed to make the sale, advertised or undertook to sell, given the purchaser by the decree of confirmation, a more serious question is presented. In Core v. Strickler, 24 W. Va. 689, it was held, that a sale by a commissioner not previously authorized to make it, after confirmation, was not void, but a mere irregularity which was cured by the decree of confirmation, and not reversible error on bill of review. And in Castleman v. Castleman, 67 W. Va. 407, 68 S. E. 34, 28 L. R. A. (N. S.) 393, we decided that a sale by a commissioner of land by the acre, not so authorized by the decree of sale, was not void, but a mere irregularity likewise cured by confirmation. But those cases do not cover the exact point now presented. They involved no error covered by the decree of confirmation. The decree of sale in this case authorizes the commissioner appointed to sell, to first offer the mineral and mineral rights in the land, and if these do not bring sufficient to pay the debts, then to sell the whole estate in the land. Sale of the minerals under such a decree would undoubtedly include reasonable mineral rights, adequate to enable the purchaser to mine and take out the coal and other minerals. We so held, in effect, in Armstrong v. Coal Co., 67 W. Va. 589, 69 S. E. 195. If the commissioner had advertised the sale of the minerals and mineral rights and other rights as described in the decree, and the court had confirmed the sale thus made, Castleman v. Castleman, supra, would be applicable. The notice or advertisement of the sale we do not find in the record. The bill alleges that the special commissioner "advertised the mineral, mineral rights and privileges," and it concedes that if reasonable rights only had been included in the decree of confirmation and deed of the commissioner, there would be no error; but it is alleged that without previous advertisement and sale these larger surface rights, with all the timber, and other rights not so advertised and sold were by the decree of confirmation and the deed of the commissioner, erroneously invested in the purchaser. Is this error in the decree of confirmation jurisdictional and not covered by section 8, chapter 132, Code? The question is a close one, but we are persuaded to answer in the affirmative. In some jurisdictions as formerly in Wisconsin and Michigan, where sales of a decedent's lands to pay debts are authorized on mere license granted an administrator, the proceeding to obtain license is regarded as one in rem rather than in personam. And such being the character of the proceeding,

or property interests not purchased and not authorized to be sold except upon a condition, which did not happen.

rem, errors or defects in the proceedings are | could not confer upon him title to property not treated as jurisdictional, voiding the title of purchaser. Grignon v. Astor, 2 How. 319, 11 L. Ed. 283; Mohr v. Manierre, 101 U. S. 417, 25 L. Ed. 1052. In the former case, Judge Baldwin, at pages 338, 339, of 2 How. (11 L. Ed. 283), says: "As the jurisdiction of such courts is irrespective of the parties in interest, our inquiry in this case is whether the County Court of Brown County had power to act in the estate of Peter Grignon, on the petition of the administrator under the law of Michigan, providing that where the goods and chattels of a decedent are not sufficient to answer his just debts, on representation thereof, and the same being made to appear to the County Court where he dwelt, or where his real estate lies, it may license the executor or administrator to make sale of so much as will satisfy the debts and legacies. No other requisites to the jurisdiction of the County Court are prescribed than the death of Grignon, the insufficiency of his personal estate to pay his debts, and a representation thereof to the County Court where he dwelt or his real estate was situate, making these facts appear to the court. Their decision was the exercise of jurisdiction, which was conferred by the representation; for whenever that was before the court, they must hear and determine whether it was true or not; it was a subject on which there might be judicial action."

But in this State by statute a suit whether by administrator or creditor to sell a decedent's lands to pay his debts is in personam as well as in rem. Section 7, chapter 86, Code 1906, requires that the widow, heirs, and devisees, if any, and all known creditors of decedent shall be made defendants, and the rights of all parties, infants and adults, must be protected by proper process and decree. Jurisdiction of the person as well as of the property must be acquired, to sell and to give good title to purchasers.

We have high authority for holding that an order confirming a sale of property not authorized to be sold by the decree or order of sale is void and inoperative. Freeman on Void Judicial Sales (3d Ed.) section 44. In M. & M. R. R. Co. v. Soutter, 2 Wall. 609, 17 L. Ed. 886, it was held that a sale by a marshal, unauthorized by decree, is a nullity. The question in that case was whether certain rolling stock of a railroad company was decreed, and included in the sale by the master. Apropos to this case the court says: "Upon principle, the question is by no means free from difficulty. We are clear that a sale without a decree to sustain it would be a nullity, and we doubt if a court can make it valid by a mere general order of confirmation. If, however, an issue had been made by exceptions or other proper pleading, as to the question whether any particular piece of property had been included in the decree, or order of sale, and the court had decided that it was so included, it might be an adjudication upon the construction of the decree which would bind the parties. Nothing of the kind occurred here. There is every reason, on the contrary, to believe, that the court had no suspicion that the Marshal had sold more than the decree authorized." As in that case so in this, no exceptions to the commissioner's report raised or perhaps could have raised on the report as made any issue as to the right of the purchaser to other property or larger interests in property than were actually sold and reported as sold. There was therefore no valid adjudication of the rights of the purchaser to the additional property and property rights and interests covered by the decree of confirmation. It was the duty of the court to have guarded carefully the rights of the infant defendants and to have seen to it that no injustice or injury was done them.

The troublesome question we have here is, did the court have jurisdiction by decree of confirmation to invest in the purchaser title The purchaser's right to the additional propto property not sold, or offered for sale, or erty and property rights not having been adjuauthorized to be sold, except on condition dicated and the error appearing in the decree that that offered for sale and reported as of confirmation, we think the court was withsold by the commissioner would not sell for out jurisdiction to confer title to the additionsufficient to pay decedent's debts? If the al property and property rights on the purmineral and mineral rights sold and au- chaser. It was held in Dunfee v. Childs, thorized to be sold brought a sufficient supra, that error in a decree of confirmation amount, as they did, to pay the debts, the is not covered by the statute, and a purdecree gave no authority to the commissioner chaser is not protected thereby. Pertinent to sell other or additional property and prop is the case of Hilleary & Johnson v. Thomperty rights, and the commissioner was there- son, 11 W. Va. 113. One of the questions fore without authority under the decree to in that case was whether or not the growing sell more, and the court, we think must be crop on the land was sold with it, and it regarded as having been without jurisdiction was held that under the circumstances surto confirm to the purchaser other property or rounding that case, and in view of the misgreater rights and interests therein than was understanding at the sale, the conduct of the sold or authorized to be sold. The purchaser auctioneer, and the inadequacy of the price was entitled only to the property actually bid, along with the consideration, that a

not exercise an arbitrary but a sound legal | coke ovens and manufacture coke; the right discretion in the interest of fairness and to erect and maintain buildings on said land, prudence, and with a just regard to the rights of all concerned, the sale was illegal and void. That case it is true was decided upon appeal, the decree below being reversed for the error and the cause remanded.

other than those necessary to conveniently remove the coal and the other minerals sold and conveyed; the right to take any of the timber therefrom, for any purpose; rights of way over and upon said land, for general railroad purposes; the right to erect and maintain store houses or other improvements thereon, not necessary for the convenient mining and removal of coal and other mineral substances fairly included with. in the mineral rights sold and purchased by the purchaser. In so far as such property and property rights and interests were by the said decree of confirmation confirmed to the purchaser, we hold it to be void and that it should be set aside, reversed and annulled, and that defendants should be required to account to plaintiffs therefor, and for the use and occupation of said lands, not legally authorized, and for the property and property rights taken which were not sold and purchased under the decree of sale.

In Shriver v. Lynn, 2 How. 43, 11 L. Ed. 172, more land was sold than was decreed or the court had jurisdiction to sell, but after the sale the court undertook to confirm it. At page 59, it is said: "Does the ratification of the sale bring it within the rule, which applies to a case where the court has jurisdiction, but has committed errors in its proceedings? Had the court jurisdiction of the tract of land in controversy ?" The answer given at page 60, is, "No court, how ever great may be its dignity, can arrogate to itself the power of disposing of real estate without the forms of law. It must obtain jurisdiction of the thing in a legal mode. A decree without notice, would be treated as a nullity. And so must a sale of land be treated, which has been made without an order or decree of the court, though it may have ratified the sale. The statute under which the proceeding was had requires a decree; at least such has been its uniform construction." In Townsend v. Tallant, 33 Cal. 45, 91 Am. Dec. 621, it is said: "But if the order of sale was coram non judice, then the 'sale' was no sale, and it could not be made valid and binding by any number of so-called confirmations." In Bethel v. Bethel, 69 Ky. (6 Bush) 65, 99 Am. Dec. 655, it is held, that a sale of land is void when not made in pursuance of a decree, and that no invalid sale can be sanctified by a mere confirmation of a commissioner's report. In that case the first decree authorized the com-lowing spring, but died in the meantime and missioner to sell land in parcels, limiting the price per acre. The sale made was under a second decree at another term, authorizing a sale of the whole of the land, and without restriction as to price. The sale was held void. In Campbell v. Clay, 6 Bush (Ky.) 500, the statute required the commissioners to report certain facts, as a condition of selling infants' lands. The report was not strictly in accordance with the requirements of the statute. The statute not having been complied with the decree and sale were held void. See, also, Rorer on Judicial Sales (2d Ed.) sections 53, 56, and 499.

Upon the principles of these authorities, we hold, that the decree of confirmation in this case in so far as it undertook to confirm to the purchaser property and property rights other than what were sold and reported by the commissioner is absolutely void, and that the purchaser by the decree of confirmation took no title thereto as against the infant defendants, plaintiffs in this suit. Those rights which we think should be eliminated from the decree of confirmation and the deed of the commis

[7] And lastly, as to the decree on the petition of Johnson Ferguson. The petitioner was not a party to the suit. There was no mention of him in the bill, nor of the land claimed by him, nor after his intervention was the bill amended. The petitioner simply intervened by his petition, and the order filing it made him a party, whether plaintiff or defendant the decree does not say. He set up an oral contract for the sale of land, of which he alleged he was assignee. The petition alleges that one Midkiff was the purchaser, and that after his alleged purchase in the fall of 1898, he moved on the land and built a small log house; that Chapman was to make him a deed the fol

never had done so. Petitioner concedes that nothing was paid by the purchaser until after the death of decedent, when the contract price, $50.00, was paid to the administratrix, the wife. The legal title to this land on the death of Chapman descended to his infant heirs. The petition made no one a party to it; did not pray for process, and no opportunity was given to defend the petition, not even the guardian ad litem answered or was required to answer, or made any defense. The bill in this case pleads the statute of frauds, and want of jurisdiction in the court to decree the land to the petitioner, or to dismiss it out of the suit. These defenses would have been available to plaintiffs if they had been adults. In Glade Mining Co. v. Harris, 65 W. Va. 152, 63 S. E. 873, we held it to be the duty of the court to protect the interests of infant litigants, and that this rule is applicable to appellate courts, and that on appeal an infant will be given the benefit of every defense of which he could have availed himself or which might have been interposed for him in the trial court. This is not literally an appeal from

(72 W. Va. 377)

ing cause against it. But the particular | the parties and the subject matter of the question presented for decision now is, had suit, that which it may improperly do in the court jurisdiction of the parties to pro- relation to them is error, but not total innounce the decree? As there was no issue validity. The court in confirming the sale, between plaintiff and petitioner presented by since by process and pleading it had obtained the bill, and the petition did not make par- jurisdiction of the parties and the land, had ties thereto, the decree pronounced in favor the power to construe its decree of sale as of the petitioner without process we think to what mineral or mining rights were meant was utterly void. To confer jurisdiction it to be sold, though it may have acted ever is necessary to have pleadings presenting an so erroneously or improperly. issue to be tried, and also to have jurisdiction of the person by process or appearance. Many decisions say that where a case is made out between co-defendants by evidence arising from pleadings between complainant and defendant a court of equity may and should render a decree between the co-defendants, but that when there are no such pleadings a court of equity cannot render a decree between co-defendants. 8 Enc. Dig. Va. & W. Va. Rep. 286, and many cases cited. We do not think it can be properly said that a case was made out between the petitioner and the infant defendants on the pleadings between plaintiffs and defendants in the orig

inal suit.

Treating the petition of Ferguson as an answer seeking affirmative relief, the rule of Turner v. Stewart, 51 W. Va. 493, 41 S. E. 924, syllabus 15, is applicable. That rule is that where an answer is not intended for defense only, but to affect the rights of a co-defendant, it must make him a party and call for relief against him upon its facts, as in case of a cross bill, and the process to answer it must be served upon defendant. Goff v. Price, 42 W. Va. 384, 26 S. E. 287; Kanawha Lodge v. Swann, 37 W. Va. 176, 16 S. E. 462. See Dudley v. Barrett, 66 W. Va. 363, 372, 66 S. E. 507, and Dudley v.

Buckley, 68 W. Va. 630, 647, 70 S. E. 376, affirming the same proposition.

Therefore, for want of jurisdiction of the subject matter and of the parties, and for want of pleading and process, we are of opinion that the court in the original suit and the decree therein was wholly without jurisdiction to pronounce decree in favor of Ferguson, and that the decree in his favor is utterly void, and that it and the deed therefor by the commissioner should be set aside and removed as a cloud upon the title of plaintiffs and appellants.

The decree below will, therefore, be reversed in the particulars herein indicated, but affirmed in all other respects, and the cause will be remanded to the circuit court for further proceedings to be had therein in accordance with the principles herein enunciated and further according to rules governing courts of equity.

BOGGESS v. BARTLETT.

(Supreme Court of Appeals of West Virginia. April 29, 1913.)

(Syllabus by the Court.)

1. MINES AND MINERALS (§ 79*)-LEASE CONTRACT-PERFORMANCE OF CONDITIONS.

to procure a release of the lien of a deed of An agreement by a lessor with the lessee trust upon the premises by an assignee of the note representing the debt so secured, as a condition precedent to payment of part of the or performed by the procurement of a release purchase money of the lease, is not discharged of the lien by the original creditor.

[Ed. Note.-For other cases, see Mines and Minerals, Cent. Dig. § 209; Dec. Dig. § 79.*] 2. MINES AND MINERALS (§ 79*)-LEASE CON

TRACT-PERFORMANCE OF CONDITION.

Nor is the effect of the agreement destroyed or performance of the condition excused by proof, in an action for recovery of the deferred purchase money, of payment of the debt secur ed by the deed of trust to the original creditor, before assignment, or its extinction by merger in the hands of an assignee.

Minerals, Cent. Dig. § 209; Dec. Dig. § 79.*]

[Ed. Note.-For other cases, see Mines and

3. ACTION (§ 62*) - PREMATURE COMMENCEMENT-VALIDATION.

under a provision thereof permitting it, after In such case, the surrender of the lease,

the commencement of the action, but before trial thereof, does not warrant recovery. It is requisite to the maintenance of a suit that there be a cause of action at the date of its institution.

[Ed. Note.-For other cases, see Action, Cent. Dig. §§ 718-721, 723; Dec. Dig. § 62.*]

4. CONTRACTS (§ 303*)-ACTIONS-DEFENSEWAIVER OF BREACH.

A party to a contract causing, by his own default, a breach of one of its subsidiary or collateral provisions, the purpose of which was to suspend the time of payment of money by him to the other, is deemed to have waived the benefit thereof, and cannot rely upon the breach as a defense to an action for the money.

[Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 1409-1443; Dec. Dig. § 303.*] 5. CONTRACTS (§ 278*)-WAIVER OF BREACH.

In such case, if the collateral or subsidiary agreement is separable from the main contract, and was made for indemnity of the defendant, he is deemed to have elected to forego its benefit and rely upon the main or general contract for compensation in damages for violation of plaintiff's obligation under it.

[Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 1207-1213; Dec. Dig. § 278.*]

ROBINSON, J. (dissenting). Point 6 of the syllabus does not meet my approval. Where a court has obtained jurisdiction of For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Error to Circuit Court, Marion County. as follows: Owning a tract of land containAction by Harriett A. Boggess against Fred W. Bartlett. Judgment for plaintiff, and defendant brings error. Affirmed.