
    4 Dec. 1820.
    CURTIS’S HEIRS, vs. JAMES ELLIS,
    0)J g m[i fíj em>r fQ revm£ fl cree of the Mason circuit court.
    
   The Chief Justice

delivered the opinion.

This was a bill exhibited by Ellis against the children and heirs of El&anor and John Curtis, deceased. He al-ledges that Curtis died seised of 104 1-2 acres of land, 50 of which he held in right of his wife Eleanor, and 54 1-2 in his own right. That Curtis left by his wife Eleanor, six children — George, David, Polly, Julia, Hiram and Ann, the wife of Hill; and by a second wife, five children — Nicholas, John, Ellen, Eliza and James; and that Ellis had purchased from Hill and wife and David, two of the children of Curtis by his first wife, Eleanor, their shares in the 104 1 -2 acres, being two-sixths of the 50 and two-elevenths of the 54 1 2 acres. He makes the children of Curtis by both wives defendants, except those from whom be purchased: Says they are all infants but (^earge, and jprays a decree for a partition, and a conveyance of his part in severalty.

TJíe al!j^ -golions of a h**1, are m)t ttíe Vímli^of the fact ai-lodged: ami ⅛,,ree against a ¿ft. alleged n> be answer'oft.u guardian ad

Bibb for plaintiff, Hardin for defendant.

The subpoenaa was executed upon ail the defendants except George and Hiram. The court made an order appointing a guardian to defend for “all the infant heirs of John Curtis, deceased, who are defendants in this cause,” without naming them, and the guardian, so appointed, filed his answer in the same way.

Against George there was an order to advertise, which being executed, the bid was taken for confessed as to him. fn this state of the proceedings the cause was beard, and the circuit court decreed a partition, iu conformity to the prayer of the bill From that decree the defendants have appealed to this court.

It is unnecessary to enquire into the correctness of the decree upon its merits, since we are of opinion that the qause was not in a situation to be heard with propriety, when the decree was pronounced, •

Hiram Curtis was undoubtedly a necessary party, and as the subpoena was not served on him, the cause was not in a state to be heard, unless he was one of those for whom the guardian tyas appointed, and answered. But the appointment of the guardian was made and his answer filed only for such of the defendants as were infants, without naming them; and there is nothing in the reeord which can justify an inference that Hiram was an infant. The bill, indeed alledges the fact; but the allegation of the bill is, most indubitably, no evidence of the truth of the fact.

The decree must be reversed with costs, and the cause remanded, tor new proceedings to be had, not inconsistent with this opinion.  