October 17, 2011 § 3 Comments

Minors can not act for themselves. We call this the “disability of minority,” and the chancery court is charged with protecting their rights. Alack vs. Phelps, 230 So. 2d 789, 793 (Miss. 1970).

The principle of minority disability is in keeping with the ancient maxim of equity that “When parties are disabled equity will act for them.” Griffith, Mississippi Chancery Practice, Section 34, page 37 (1950 ed.). More than 130 years ago, in the case of Price vs. Crone, 1871 WL 8417, at 3 (1870), the Mississippi Supreme Court stated:

“Nothing is taken as confessed or waived by the minor or her guardian. The court must look to the record and all its parts, to see that a case is made which will warrant a decree to bind and conclude [the minor’s] interest, and of its own motion, give the minor the benefit of all objections and exceptions, as fully as if specially made in pleading … There being no power in the infant to waive anything, a valid decree could not be made against her, unless there has been substantial compliance with the requirements of the law, in the essential matters.”  [Emphasis added]

Thus, the chancery court can and should act on its own initiative to protect and defend the minor’s interest.

In the case of Khoury vs. Saik, 203 Miss. 155, 33 So.2d 616, 618 (Miss. 1948), the supreme court held that, “Minors can waive nothing. In the law they are helpless, so much so that their representatives can waive nothing for them …” This is so even where the minor has pled, appeared in court, and even testified.” Parker vs. Smith, et al., 150 Miss. 849, 117 So. 249, 250 (Miss. 1928).

Our modern MRCP 4(e) embodies these concepts wherein it specifically states that, “Any party … who is not an unmarried minor … may … waive service of process or enter his or her appearance … in any action, with the same effect as if he or she had been duly served with process, in the manner required by law on the day of the ate thereof.” There is no provision in MRCP 4 that permits a minor to join in an action on his or her own initiative, or to waive process; in fact, the express language of Rule 4 makes it clear that such is not permitted.

It is a long-held fundamental of Mississippi law that process must be had on infants in the form and manner require by law, and a decree rendered against minors without service in the form and manner required by law is void as to them, as they can not waive process. Carter vs. Graves, 230 Miss. 463, 470, 93 So.2d 177, 180 (Miss. 1957).

The purpose of the protective posture of the law is clear: “Minors are considered incapable of making such decisions because of their lack of emotional and intellectual maturity.”  Dissent of Presiding Justice McRae in J.M.M. vs. New Beginnings of Tupelo, 796 So.2d 975, 984 (Miss. 2001). During the formative adolescent years, minors often lack the experience, perspective and judgment required to recognize and avoid choices that are not in their best interest. Belotti vs. Baird, 443 U.S. 622, 634, 99 S.Ct. 3035, 3043 (1979).

In the case of In the Matter of R.B., a Minor, by and through Her Next Friend, V.D. vs. State of Mississippi, 790 So.2d 830 (Miss. 2001), R.B., an unmarried, seventeen-year-old minor, became pregnant and sought chancery court approval of an abortion, pursuant to MCA § 41-41-55(4). The decision described her as, ” … of limited education, having attended school through the eighth grade,” and largely ignorant of the medical and legal implications of her request. Id., at 831. The decision reveals that the chancellor went to great pains to develop the record that the young girl had not been informed of the possible complications of the surgical procedure, that she was emotionally fragile and susceptible to mental harm, that there were services available to the youngster of which she was unaware, and other pertinent factors. Id., at 834. The supreme court upheld the decision of the chancellor, saying,

“R.B. has failed to persuade us that she is mature enough to handle the decision (for an abortion) on her own. The record does not indicate that the minor is capable of reasoned decision-making and that she has considered her various options. Rather the decision shows that R.B.’s decision is the product of impulse.” Id., at 834.

It has long been the law in Mississippi that all who deal with minors deal with them at their peril, since the law will take extraordinary measures to guard them against their own incapacity.

The principle of minority disability is ingrained in many facets of Mississippi law:

  • Minors may not vote. Article 12, Section 241, Mississippi Constitution.
  • Minors may not waive process. MRCP 4(e).
  • Minors may not select their own domicile, but must have that of the parents. Boyle vs. Griffin, , 84 Miss.41, 36 So. 141, 142 (Miss. 1904); In re Guardianship of Watson, , 317 So.2d 30, 32 (Miss. 1975); MississippiBand of Choctaw Indians vs. Holyfield,  490 U.S. 30, 40; 109 S.Ct. 1597, 1603 (1989).
  • Minors may not enter into binding contracts regarding personal property or sue or be sued in their own right in regard to contracts into which they have entered. MCA § 93-19-13.
  • Minors may not have an interest in an estate without having a guardian appointed for them. MCA § 93-13-13.
  • Minors may not purchase or sell real property, or mortgage it, or lease it, or make deeds of trust or contracts with respect to it, or make promissory notes with respect to interests in real property without first having his or her disabilities of minority removed. MCA § 93-19-1.
  • Minors may not be bound by contracts for the sale of land, and may void them at their option.Edmunds vs. Mister, 58 Miss. 765 (1881).
  • Minors may not choose the parent with whom they shall live in a divorce or modification; although they may state a preference, their choice is not binding on the chancellor. MCA § 93-11-65; Westbrook vs Oglesbee,606 So.2d 1142, 1146 (Miss. 1992); Bell vs. Bell, 572 So.2d 841, 846 (Miss. 1990). Minors may not after emancipation be bound by or enforce contracts entered into during minority except by following certain statutory procedures. MCA § 15-3-11.
  • Minors may not legally consent to have sexual intercourse. MCA § 97-3-65(b).
  • Minors may not legally consent to be fondled. MCA § 97-5-23(1).
  • Minors are protected by an extended statute of limitations. MCA § 15-1-59.

It’s important to be aware of the legal status of the persons with whom you are dealing in land transactions, estates, contracts, and many other legal matters.  In Mississippi, minors have many legal protections and disabilities that the courts will zealously guard.

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  • […] previously posted here and here on the scope of the disabilities of […]

  • Mike says:

    I also think the courts application of the emancipation provisions of the child support statute to hold that such also removed the disability for statute of limitation purposes in recovery of past due child support is misguided. The public polcies behind child support emancipation (eg reliving a parent of duty to support in limited circumstances) are not the same as those behind the tolling provisions for minority for statutes of limitation (eg tolling until minor is mentally and emotionally able to make decisions). However, the cases seem well entrenched on this point.

  • randywallace says:

    Interesting. Given what minors are not allowed to do I always thought it odd that the legislature would remove minority for those over 18 allowing them to enter into contracts for personal property. Therefore, a person between the ages of eighteen and twenty one can execute a release and potentially settle a six or seven figure claim without court involvement.

    “We therefore hold section 93-19-13, (Supp. 1980) effectively removes the disability of minority of all persons 18 years of age or older for the purpose of entering into contracts affecting personal property including the right to settle a claim for personal injuries, to execute a contract settling the claim, and to accept money in settlement of the claim.”

    Garrett v. Gay, 394 So.2d 321 (1981).

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You are currently reading WHAT IS THE EXTENT OF THE DISABILITIES OF MINORITY? at The Better Chancery Practice Blog.


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