A deed, void at the time of its execution, cannot be made valid and effective, by any amendment to the original proceedings under which such deed was executed.
Where land, devised to a husband, had, after his death, been assigned to his widow for dower in 1864, and the same had been sold under an order of Court in 1872, in a petition to sell the lands of the testator, who had devised said lands to pay his, the said testator's debt, to which petition the widow was not made a party: Held, that the sale was void as to her, and that no subsequent amendment, by which she was made a party, could make the sale valid, or effect her right to dower.
PEARSON, C. J.
The land, in controversy, had been assigned to the feme defendant, for her dower, as the widow of Augustus Byers. The order to sell the land was made in a proceeding, to which she was not made a party. It follows that, as to her, the order and the sale and deed made to plaintiff in pursuance thereof, were all void and of no legal effect. The question is, did the amendment by which she was afterwards made a party, and the allegation of the insolvency of the sureties on the administration bond was added, give effect to the deed ? There is no principle of law or equity, by which a deed, void at the time of its execution, can be made valid and have effect, by an amendment in the original proceeding. This is too plain for discussion.
After the necessary amendments were made in the proceeding, Carlton v. Byers, the proper order was to direct a re-sale of the land. The equity of the plaintiff to be allowed the amount, paid by him as a purchaser under the first order of sale, would have come on for further directions, upon the report of sale, and for distribution and application of the fund.
This is an action to recover land. Upon what principle of orderly procedure this action could be mixed up and confounded with a proceeding to sell land and make assets, the Court is not able to comprehend.
There is error. Judgment reversed. This will be certified.
PER CURIAM. Judgment reversed.