Ashford v. Patton
70 Ala. 479
Ala.
1881
Check Treatment
BRICKELL, C. J.

In сourts of equity, infant defendants must be represented by a guardian ad litem appointed by the court. The duty of the guardian is to put in proper defense for the infant; and lie is responsible for tire propriety and conduct of the defense, and is subject to the censure of the court, and to removal, if he neglects it.—Knickerbocker v. De Forrest, 2 Paige, 304. It is his special duty to submit, for the consideration and decision of the court, every question in the suit touching the rights and interests of the infant.—Dow v. Jewell, 21 N. H. 480. If there be not a necessity for an answer presenting a special defense, or stating the defense specially, it is sufficient that thе guardian for the infant puts in a general answer, disclaiming all knowledge of the truth of the allegations of the bill, so far as they affect the infant, and submitting his rights and interests to the care and ‍‌​​​‌​‌​‌​​‌‌​‌‌​​​​‌​​‌​​​​​‌‌‌​​​​​‌​‌​‌​‌​​‌‌‍protection of the court. Whatever may be the character of the аnswer, — if, in dereliction of duty, the guardian should file an answer admitting the material allegations of the bill, — the complainant is still bound to prove, by independent evidence, every material fact upon which he relies, or which is essential to the- relief prayed.—1 Dаn. Ch. Pr. 170.

If it appeared upon the record that a court of equity had proceeded to a final decree against an infant, without any other evidence than the answer of a guardian ad litem,, admitting the allegations of the bill, or upon no other evidence of material facts than his admissions, made for the purpose of a hearing, it would be error, for which the decree would оn appeal be reversed ; and probably, if this were shown by the decree, there would be error apparent, which would suрport a bill of review. U. S. Bank v. Ritchie, 8 Peters, 128. But we do not understand, from an examination of the decree in the present suit, that it was founded on the answer of the guardian ad litem admitting the allegations of the bill, or that the answer was submitted as evidence. The ‍‌​​​‌​‌​‌​​‌‌​‌‌​​​​‌​​‌​​​​​‌‌‌​​​​​‌​‌​‌​‌​​‌‌‍submission of the cause for hearing, it is rеcited, was on bill, answers, decrees fro confesso, exhibits, and original bonds. The hearing of a cause for final decree, in a court of equity, is, оf necessity, upon the pleadings, whether so recited in the note or minute of its submission or not. The *483recital in the minute, that the pleadings were submitted, is the mere expression of that which would be intended in the absence of the recital. From the recital it can not be intended that the pleadings were submitted as evidence, or as ,such were received by the court. If that intendment was made from the recital found in this decree, as to the answer of the guardian ad- litem, it would apply alike to the bill, and also to the answer of the administrator, which did not admit, but put in issue the truth of the allegations of the bill.

It is said, however, that the court must have received ‍‌​​​‌​‌​‌​​‌‌​‌‌​​​​‌​​‌​​​​​‌‌‌​​​​​‌​‌​‌​‌​​‌‌‍and aсted on the answer of the guardian ad litem, for without it there is not evidence on which the decree could have been rendered. Whether there is evidence to support a decree, whether the court has misjudged the evidence, is not an inquiry which can be' made on a bill of review. If in that respect the court errs, the error can be corrected only on appeal. Thеre was evidence, the bonds and the instrument purporting to be a deed of the lands, bearing the same date with the bonds, which was submitted. The statute renders any written instrument, the foundation of suit, prima fade evidence of the debt or duty for which it purports to be given, and that it was made upon sufficient consideration. All such instruments are self-proving, unless the fact of execution is denied by verified plea. The statute applies alike to suits in equity and at law. — Holman v. Bank of Norfolk, 32 Ala. 369. The instrument purporting to be a deed is not valid as a conveyance of the legal estate, for want of attestation by witnesses, or an acknowledgment and certificate of execution. It may be an instrument of evidence, though inoperative as a conveyance. Without proof of its execution and delivery, it may not have been admissiblе as evidence. An error in the admission of evidence, or basing a decree upon inadmissible evidence, or error in rendеring a decree contrary to the evidence, must be corrected by appéal: neither constitutes error appаrent for which a bill of review can be maintained.—McDougald v. Dougherty, 39 Ala. 409; Eaton v. Dickinson, 3 Sneed, 397. The chancellor, it may be, deduced from the correspondence in date of the bonds and the instrument exhibited and given in evidence, the conclusion that the consideration of the bonds was the purchase-money of the lands described ‍‌​​​‌​‌​‌​​‌‌​‌‌​​​​‌​​‌​​​​​‌‌‌​​​​​‌​‌​‌​‌​​‌‌‍in the instrument. If that be true, the conclusion is not stated in the decree; and if it is not a legitimate conclusion, there is merely an erroneous decision of a question of fact, which is not ground for a bill of review.—Whiting v. U. S. Bank, 13 Peters. 6; Evans v. Clement, 14 Ill. 206; Levi v. Blewitt, 1 Dev. & Bat. Eq. 108; Webb v. Pell, 3 Paige, 368.

The second assignment of error in the bill of review is not supported by the record. There was a reference to the register, to as*484certain the amount of the purchase-money; and a report was made by the register, on the day the decree was rendered. The dеcree declares a lien on the lands for the unpaid balance of the purchase-money, in immediate connection with the reference to the register; and it is incapable of any other construction, than as being rendered for the amоunt reported by the register to be due and unpaid. Certainty is an essential element of a judgment or decree; and in itself it ought to be complete, without reference to anything else by which to ascertain its meaning. Rut, when the decree of a chancеllor refers to a report of the register as its basis, the report must be taken and construed as part of the decree. Such, it is manifest, was the purpose of the chancellor in this case; and though the decree' would have-been more formal, if it hаd expressed the amount of the unpaid purchase-money, the want of form is not error available on a bill of review. The irregularity of rendering the decree before the confirmation of the report of the register, ascertaining the amount of the unpaid purchase-money, is not of the class of errors for which a bill of review will lie.—McCall v. McCurdy, at present term.

The third assignment of errors — the rendition of the deсree of sale, without a reference to the register to ascertain and report whether a sale of the whole, оr a part only of the lands, was necessary for the payment of the debt — can not be sustained.—McCall v. McCurdy, at present term.

The chancellor did not err in dismissing ‍‌​​​‌​‌​‌​​‌‌​‌‌​​​​‌​​‌​​​​​‌‌‌​​​​​‌​‌​‌​‌​​‌‌‍the bill, and his decree is affirmed.