
    John Manfull v. A. D. Graham.
    Filed June 23, 1898.
    No. 8199.
    1. Infants: Guardian Ad Litem: Judgments. Where infant defendants have been regularly summoned, the failure to appoint a guardian ad litem, to represent them is an error merely and does not render void the judgment entered. Parker v. Starr, 21 Neb. 680, followed.
    2. -: Deceee: Vacating Judgment. Section 442 of the Code of Civil Procedure, providing that “it shall not be necessary to reserve, in a judgment or order, the right of an infant to show cause against it after his attaining full age; but in any case in which, but for that section, such reservation would have been proper, the infant, within one year after arriving at the age of twenty-one years, may show cause -against such order or judgment,” does not give an infant on arriving- at his majority an absolute right to have the judgment set aside, but only to show cause against it, and does not extend that right beyond those cases in which under the old practice such right was reserved in the decree.
    3. -: -- — : -: Sale oe Land. Under section 442, above quoted, an infant is not entitled to a.day in court after reaching his majority to show cause against a judgment ordering the sale pf his lands,
    
      4. Judgment Against Infant: Pboceeding to Vacate. An infant against whom an erroneous judgment has been entered may have it set aside under the provisions of sections 603 of the Code, provided his disability did not appear in the record nor the error in the proceedings. If those facts did so appear he must proceed by petition in error.
    5. Judicial Sale: Titus ojt Pubciiaser: Vacating Judgment. The title of a stranger derived through a sale under a judgment is not defeated by a subsequent vacation of the judgment, whether such vacation be by proceeding's in error or under section 603 of the Code.
    6. Judgment Against Infant: Action to Vacate. An original suit cannot be maintained to vacate an erroneous judgment against an infant, without at least showing a g’ood defense to the first ■action.
    Error from the district court of Buffalo county. Tried below before Sinclair, J.
    
      Affirmed.
    
    
      Leslie G-. Hard, for plaintiff in error.
    
      B. 0. Hostetler, contra.
    
   Irvine, C.

Graham brought suit against Manfull and bis wife to foreclose a contract for the sale of land, alleging that Manfull bad failed to malee the payments of purchase-money as provided. A decree was rendered directing the sale of the land to satisfy the amount found due under the contract. It is conceded that Mrs. Manfull’s interest is only such as results from the marital relation. The defense interposed by Manfull was that Graham’s contract required him to tender a good title in fee simple and that he was unable to do so because he claimed under a purchaser at a sale foreclosing a mortgage, and the foreclosure was ineffective. The defect in the foreclosure proceedings was that an undivided half interest Avas in certain minors and that no guardian ad litem had been appointed to represent them.

While the ansAver alleges a failure to serve process on the infants, the stipulation of facts on which the case was tried discloses no such defect. Where infants are regularly summoned, tlie failure to appoint a guardian <id litem is an error only and does not render void the judgment entered. Siich has been the rule with regard to insane defendants. (McAlister v. Lancaster County Bank, 15 Neb. 295; McCormick v. Paddock, 20 Neb. 486.) In the former case it was intimated that there might be a distinction as to infants, but it was afterwards held that there is no such distinction, and that the rule as to infants is the same. (Parker v. Starr, 21 Neb. 680.) Parker v. Starr establishes .a rule of property, and moreover is in accord with the best considered cases. It will not now be departed from.

From the foregoing it follows that the sale made under the foreclosure decree was not void, and that it passed title to the purchaser. But it is said that the infant defendants have not yet reached their majority and may still be heard to question the regularity of the proceedings, that therefore the defendant is not required to accept a title that may be so attacked. The briefs do not indicate very clearly what procedure is still deemed open to the infants. We can conceive of no possible remedy which may remain open unless it be by virtue of section 442 or section 602 of the Code of Civil Procedure, by pro.ceedings in error, or by original action in the nature of a bill in equity.

Section 442 provides: “It shall not be necessary to reserve, in a judgment or order, the right of an infant to show cause against it after his attaining full age; but in any case in which, but for this section, such reservation would have been proper, the infant, within one year after arriving at the age of twenty-one years, may show cause against such order or judgment." For several reasons no right coqld be claimed by these infants under that section. In the first place the right there protected is not an absolute right to have the judgment set aside, but it is only to show cause against it. It is not here disclosed by pleadings or by proof that any such cause exists. The failure to appoint a guardian ad litem is not such, cause. Tbe section quoted recognizes tbe old chancery rule, based not on formal defects in tbe proceedings, but on tbe theory that tbe infant was not bound by tbe answer of tbe guardian ad litem, and might show cause against a decree as well where be bad been represented by guardian as where be bad not, and this by showing either substantial error, or a defense which bad not been interposed. Tbe relief accorded was entirely independ-. ent of representation by guardian, and tbe fact that no guardian bad been appointed would be immaterial under this section. Again it was not in all cases that tbe infant was so accorded bis day in court after reaching bis majority. The statute does not extend bis former rights in that respect, but merely makes it unnecessary to expressly reserve tbe right in tbe decree, and allows tbe right to be asserted only in such cases as, according to tbe old practice, such express reservation Avould be proper. Where tbe decree directed tbe sale of the infant’s lands it was under tbe former practice binding on tbe infant and be bad no day in court to show cause against it. (Booth v. Rich, 1 Vern. [Eng.] 295; Mills v. Dennis, 3 Johns. Ch. [N. Y.] 367.) In this respect there was a distinction between a decree ordering a sale and a strict foreclosure.

That portion of section 602 which might be applicable, is as follows: “A district court shall have power to vacate or modify its own judgments or orders, after tbe term at which such judgment or order was made. * * * Fifth, For erroneous proceedings against an infant, married woman, or person of unsound mind, where tbe condition of such defendant does not appear in tbe record nor tbe error in tbe proceedings.” It will be observed that it is only where the condition of tbe defendant does not appear of record nor tbe error in tbe proceedings that this section applies. Tbe object of the exception is not at first manifest. Tbe supreme court of Ohio, construing a similar provision, said tbe reason seemed to be that if tbe defendant’s condition appeared of record it Avould attract the attenton of the court and so insure dxie scrutiny.

(Carey v. Kemper, 45 O. St. 93.) We think, however, that a better reason is that proceedings in error may be brought within one year after such a disability is removed, and if the condition of the defendant and the error are disclosed by the record such proceedings afford a remedy. Otherwise section 602 becomes available. This seems to be the construction implied in Jennings v. Simpson, 12 Neb. 558, from the citation therein of Yaple v. Titus, 41 Pa. St. 195. In the present case whether the condition of the infants appeared of record is not disclosed, but that fact is not material. If it was disclosed and the foreclosure decree should ultimately be reversed on error the purchaser would be protected by the express terms of section 508 of the Code of Civil Procedure. (McAusland v. Pundt, 1 Neb. 211; Green v. Hall, 43 Neb. 275.) If, on the other hand, their condition did not appear of record we still think that section 508 applies, and that the title of the purchaser would not be defeated or affected by a subsequent vacation of the judgment. Vacating judgments under section 602 is referred to under the title of “reversals” by the court rendering the judgment, and we do not think that section 508 in using the word “reversal” contemplated only a reversal by an ap.pellate court. It meant a reversal by any court authorized to set aside the judgment. Its policy was to protect purchasers at sales under judgments which had been rendered by courts of competent jurisdiction in the premises, no matter how erroneous might be the proceedings leading to 'the judgment. Independent of any statute a title so derived is not defeated by a subsequent Vacation of the judgment. (Allman v. Taylor, 101 Ill. 185; England v. Garner, 90 N. Car. 197.)

• A sufficient -eason why the title is not hazarded by an original action is that the defendant suggests no equity in favor of the minors or no defense to the foreclosure. This would be necessary to maintain an original case and it would indeed be necessary to a proceeding under section 602,

. As it was not shown that the plaintiff’s title was defective or even threatened, the judgment of the district court was right.

Affirmed.  