
    Valentine vs. Cooley.
    Infancy. Appearance by attorney. Where a sci. fa. fe prosecuted against heirs, someof whom are infants, to subject lands descended to the satisfaction of the ancestor's debt, a general appearance thereto and demurrer by counsel for the defendants, cannot be regarded as an appearance for the infants: more especially if the mandate be to make it known to the guardians.
    Same. Process void as to infants only irregular as to adults joined therein. Though a sci. fa. be void as to infants for want of personal service, it will, on that account, only be irregular as to the adults joined therein with them; and a judgment and sale under it will stand till reversed as to the adults, and pass the title of their interest in the land.
    Witness. Competency of sheriff to prove want of notice of sale. The sheriff is competent, butnot bound to give evidence of his own frilure to give notice of the time and place of sale as required by the act of 1799, c. 14 § 1.
    STATL TE OF .LIMITATIONS. Effect ofpossession by verbal purchase. A possession of land taken in consequence of a verbal sale is the possession of the vendor and under his title; but if a conveyance be made to the verbal vendee, he may couple his possession before and after the deed together, so as to gain the protection of the statute.
    Ejectment for 345 acres of land on Dyer’s creek in Stewart county, commenced on the 21st of June, 1836, Stewart circutit court on the demise of Richard, Jonathan, George and William G. Cooley, William H. Haggard and Rebecca his wife, Joseph Webster and Elizabeth his wife and Isaac Piles and Ann his wife, heirs at law of William M. Cooley deceased, against Solomon R. Valentine.
    The State of North Carolina granted the premises by patent No. 1159, dated the 26th of November, 1789, to Richard Fenner, assignee of Joshua English, a private in her continental line. The grantee, by deed dated the 15th of October, 1798, conveyed this tract among others to Robert Fenner, who, by his deed dated the 1 st of August, 1802, conveyed 308 acres thereof to Wiliiam M. Cooley, ancestor of the lessors of the plaintiff. About the 25th of January, 1819, William M. Cooley, William Pryor and Young Thornton executed their joint bond in the sum of 2000 dollars to Thomas Clinton, chairman of the county court of Stewart; and after-wards in the year 1823, Cooley died intestate.
    Upon said bond, his administrators, Jonathan Cooley and Richard Cooley, were sued in Stewart county court on the 30th of December 1823. They pleaded 1. Conditions performed; 2. Fully administered; 3. Judgments recovered against them, to wit, — one in favor of Joseph Webster and wife for 703 dollars, — and one in favor of Ann Cooley for 703 dollars; 4. A retainer for their own demands against the intestate for money due them from the estate of Joel Cooley deceased, 1406 dollars; 5. And lastly, a judgment in favor of the Governor for 591 dollars. To all which pleas there were replications filed, and issues thereupon joined.
    These issues were submitted to a jury who found the first against the defendants, and assessed the plaintiffs’ damages to-474 dollars 42 cents. But they found the plea of fully administered in favor of the administrators, and the court thereupon gave judgment against the administrators for the amount of the damages, and awarded the plaintiffs a scire facias against the heirs, in which the sheriff was commanded to make it known to the guardians of the infant heirs.
    That writ was issued on the 28th of May, 1825, directed to the sheriff of Stewart, and was returned — “executed on Jonathan Cooly, Richard Cooley, 28th May, 1825, on Ann Cooley, guardian of her daughter Ann, the 17th July, 1825.” A counterpart directed to the sheriff of Henry was returned— “Came to hand 3d December, 1825, and made known-to Jo.seph Webster and wife on the 21st December 1825.”'
    The,next entry on the record is a statement of the case-at May term, 1826, against all the seven heirs of W. M. Cooley, though there is no .return of service of the sci. fa. except what is here stated; and the entry proceeds to state that the parties came “by attorneys” and the defendants’demurrer to the sci. fa. is overruled, and judgment rendered that the plaintiff have execution.
    Then there was a fi. fa. issued May, 25, 1826:, to- the .sheriff of Stewart, commanding him to make the money out ,of the lands and tenements of the defendant, “which belonged to William M. Cooley in his lifetime,” and render it to the.court at the court house in Dover “the first Monday in August next.'”
    
    This writ was returned with the following endorsements— “Came to hand the 10th day of June, 1826; levied on. three hundred and forty-five acres of land on the 15th of June, 1826; advertised for sale on the eighth day of Augustand "“Levied on the 10th of June, 1826, on 345 acres of land, lying on Dyer’s creek in Stewart county, the place whereon William M. Cooley resided in his lifetime, and where Mrs. Cooley now resides; and after having advertised the land according to law, exposed the above tract of land to public sale, at the court house in Dover the 8th day of August, 1826, and sold the same to William Bailey, the county trustee for the use and benefit of Stewart county for the sum of $499, 38¿, the principal, interest and cost of the above debt, which satisfies this execution, 8th August, 1826.”
    Besides the widow of the deceased, William G. Cooley, one of his heirs and a lessor of the plaintiff, was in possess-inof the premises at the date of the sale.
    On the 8th of Februrry, 1827, the sheriff conveyed the land by deed to Bailey, the purchaser; and on the 12th of July, 1832, Bailey conveyed it to Christopher C. Clements, who had previously taken possession under a verbal contract, and who by his deed of the 26th of July, 1832, conveyed to the defendant, who immediately took possession, which he continued till the commencement of the suit.
    Ann Cooley, the wife of Piles, came of age in 1832.
    On the trial, the lessors of plaintiff made title by reading the grant and deeds, including that to their ancestor; and they offered the deposition of Ward, the sheriff of Stewart, taken by the defendant, to prove that he gave no notice, to the tenants in possession of the land, of the time and place of sale as required by the act of 1799, c. 14 § 1. The court refused topermit it to be read, and the plaintiff excepted to this opinion. It was proved that the lessors of the plaintiff are the heirs at law of William M. Cooley, who died seized and possessed of the premises; that the plaintiff was in possession thereof at the commencement of the suit, and that they are covered by the grant and the deeds under which they claim.
    The defendant relied upon the proceedings against William M. Coolers administrators and heirs, under which the premises had been brought to sale for his debt, and the sheriff’s and the other deeds founded thereupon above recited.
    The court charged tire jury, in substance, that the writ of scire facias should have been served on the minors in per» son; that though the cause appeared to be stated as if the infants were parties, yet the demurrer to the sci. fa. was to be regarded in law as the demurrer of the guardians only; and that the judgment if void as to the infants was void as to all.
    February 6.
    The jury found a verdict for the the plaintiff. The defendant moved for a new trial, which was refused, and he appealed in error.
    Boyd and Cook for the plaintiff in error
    said, the first question is as to the validity of the judgment.
    Supposing it to be the law that the sci. fa. must be served on the infant as well as the guardian, yet that law only applies to the process, and advantage of that defect can only be taken by the infant when there is no appearance entered or plea pleaded.
    The object of the writ is to give notice, and is only deemed material for that purpose. Where an appearance is entered and plea pleaded you cannot look to any irregularity in the writ or alledge for error that there was no. writ at all.
    In this case the attorneys, Martin and Fitzgerald, appear and plead for all the defendants. The record states the case against all the defendants and that the parties appeared by their attorneys and judgment was given against the defendants.
    The guardian has the right to enter the appearance for the infant and to plead for him. He can employ counsel and it is his duty to do so. It is not necessary for the guardian or husband to wait for service on the infant or wife, but they can enter their appearance and plead for them, and they are bound by the proceeding, and if the authority is improperly exercised, they must look to the guardian for indemnity. 1 Dev. Eq. Rep. 500; 2 Johns ch. Rep. 139; 1 Paige’s Rep. 44; 9 Ves. 488; 1 Harrison Ch. P. 207; Wyatt’s Pr. Register', 402 3; Gilbert’s Forum Romanum 378; Ves. 141; 2Atk. 70; 2. Com. Dig. 216; 1 Newl. Ch. Pr. 63.
    When an attorney undertakes to appear and plead for a party, adult or infant, the proceeding is regular; the court cannot look farther, and if the attorney has appeared without authority, he is alone responsible. 6 Johns’ Reps. 342, 296, Den-ton vs. JVtopes; Keble 89; 1 Salk. 86; Com. Dig. Tit. Att. B. 7; Cro. Jas. 695; Allisl'Cy vs. Colley 1 Strange 693; 1 Binney 214, McCulloch vs. Gruffner; 1 Binn. 469; Hopkins vs. Waterhouse at Sparta, 1S23 oi-1825.
    February 6.
    The judgment if void as to one for the want of service, is not void as to those who are parties to the record by service and plea. The rule is that all parties before the court are bound by the judgment, however irregular it may be until reversed. One defendant cannot allege that the other is not bound. This is matter of plea in abatement, or if not in abatement, of demurrer. It is a matter for the adjudication of the court and when decided can never be controverted collaterally. 8 Mass Rep. 423, 424, note; 5 Burr 2, 611, Rice vs. Shute.
    
    In this case, Clements held under Baily; his possession then was the possession of Baily until he sold to Clements. It is not necessary that there should be a writing in order to constitute a tenancy; that never has been required. Was not Clements Bailey’s tenant? Did he not receive the possession from him, and did he not hold under him? Could he resist the recovery of Bailey? Did he not claim and hold under him ?
    It is not necessary to inquire whether there was such a con-, tract as under the statute of frauds would bind Bailey. Bailey has never denied the contract, but has expressly recognized it in writing, and would be bound; but whether he was or not so far as the possession was concerned, that was transferred, and could be transferred without writing. It is not usual to make written leases for a year, that not being in the statute. If the tenancy is good for one. year, the tenant will still be the tenant of the landlord as long as he holds under him, and will then be a tenant at will, or quasi tenant at will. A parol purchase under the statute of frauds is good for one year and constitutes a tenancy at will afterwards.
    Turner, F. B. Fogg and Meigs for the defendants in error,
    . . . • insisted that the sale under the scire facias judgment was void, because there was no service of process upon the infant heirs. 10 Yer. 237, Crutchfield vs. Stewart’s lessee; 4 Yer. 218, Combs vs. Young.
    
    2. That the sheriff’s sale was void because one of the defendants and the guardian of the other was in possession, and no written notice of the time, and place of sale was given Trott vs. M' Gavock's lessee, 1 Yer. 469. Carney vs. Carney, 10 Yer. 491.
    Febuary 7
    3. That the sale was void, because made after the first Monday in August, the return day of the execution. It was made on the 8th day of August, which could not by, possibility be before or on the 1st Monday, Overton vs. Perkins, 10 Yer. 328. Devereaux and Battles Reports.
    4. That if Clements was in possession of the land in 3829, there is nothing to show he had any deed, bond or agreement with Bailey before 1832, and the possession was vacant for some time in 1830.
    5. And they further insisted that the sale was void because it is stated in the writ that the infants appeared by attorney, which they cannot do. 2 Petersdorff’s Ab. Tit. Attorney V. A. p. 577, where the cases are collected.
   Green, J.

delivered the opinion of the court.

1. The general appearance to a sci. fa., and demurrer for the defendants by counsel, cannot be regarded as an appearance for the infants, who were not served with process.

In this case, especially, it cannot be so regarded, because the sci. fa. commands the sheriff to make it known to the guardians of the infants and not to them personally; therefore when the record shows that the defendants by their counsel demurred, it cannot be intended that the infants, against whom no process had been issued, appeared by counsel.

2. But the court told the jury that if the process had not been served on the infants, it was void as to them, and if void as to the infants, it was void as to the adult defendants, notwithstanding they appeared and put in a demurrer. Although the first branch of this proposition be true, we do not think the latter follows as a consequence.

The infants were not before the court, by the service of the sci. fa. on them personally, and therefore as to them the judgment is void. 10 Yer. Rep. 237. And as all the parties were not before the court, the judgment against the adults was irregular, and could have been reversed in to- io, by writ of error. 2 Petersdoff, 578, pl. 5. But although erroneous, it was not void, as to those defendants who were properly before the court. Therefore, we do not think that for this reason, the sale was void; but on the contrary, that the title to the land of the adult heirs, might pass to the purchaser at such sale.

3. The court erred also in rejecting the deposition of the sheriff — which was taken to prove that one of the defendants in the execution was in possession of the land at the time of the sale, and that he had not given the twenty days notice required by the act of 1799, c. 14, § I.

It has always been holden that although the sheriff, who sold the land, was not bound to give evidence, that he had failed to discharge his duty, yet, if he voluntarily chose to do so, he was a competent witness.

4. The court erred in telling the jury, that the possession of C. C. Clements, by virtue of a verbal contract of purchase from Bailey, could not be coupled with his possession, after he had received a deed, so as to protect him by the statute of limitation.

If Clements went into possession, by virtue of a verbal contract of purchase from Bailey, he thereby became tenant at will of Bailey, and his possession, was a possession under the deed of Bailey, which might be coupled with the possession under his own deed, after he had obtained one, so as to protect him by the statute of limitations, if the evidence showed seven years of continuous adverse possession. Jackson, ex dem. Young et als vs. Ellis and White, 18 John Rep. 118.

Let the judgment be reversed and the cause remanded for another trial.  