133 Ark. 536 | Ark. | 1918
(after stating the facts).
Section 1309 of Kirby’s Digest provides that circuit courts shall have power to authorize any person who is a resident of the county and under twenty-one years of age to transact business in general with the same effect as that done by a person of full age. This ¡section of the statute has 'been held to be valid. Hindman v. O’Connor, 54 Ark. 627, and Young v. Hiner, 72 Ark. 299.
Section 1286 of Kirby’s Digest provides that the chancery courts of this State shall have concurrent jurisdiction with the circuit courts to remove the disabilities of minors.
It will be remembered that under both of these statutes the jurisdiction is conferred upon the court and not upon the judge or the chancellor thereof in vacation. But •appellees seek to uphold the decree under an act to regulate the practice in chancery causes passed by the Legislature in 1913. They rely upon section 1 of the act. It is as follows:
“That a chancellor may deliver opinions and make and 'sign decrees in vacation in causes taken under advisement by him at a term of the court; and, by consent of parties, or of their solicitors of record, he may try causes and deliver opinions, and make and sign decrees therein in vacation. Such decrees, and all other orders and decrees which a chancellor may make in vacation shall be entered and recorded on the records of the court in which the cause, or matter is pending, and shall have the same force and effect as if made, entered and recorded in term time, and appeals may be had therefrom as in other cases.” Acts of 1913, p. 318.
That act does not apply to proceedings to remove the disabilities of minors. The (first part of the section provides that a chancellor may deliver opinions and sign decrees in vacation in cases taken under advisement by him at a term of court.
Next it is provided that by consent of parties, or of their solicitors of record, he may try causes and deliver opinions, and make and sign decrees therein in vacation. It is insisted that under this clause the minor might have had his petition to remove his disabilties presented to the chancellor and passed upon in vacation. We do not think so. The judicial emancipation of infants! imposes upon courts grave responsibilities and when courts are called upon to exercise the power conferred upon them, they can only act in the manner prescribed by the statutes and they should see that the minor’s interests are safe-guarded in every way that the statute prescribes. The power to remove the disabilities of minors was first conferred upon the circuit courts, and by a subsequent statute concurrent jurisdiction was given to the chancery .courts to be exercised in the same way as provided for the removal thereof by the circuit courts. This confers jurisdiction upon these courts to be exercised as provided by the statutes. The iact of 1913, giving chancery ¡courts the power to deliver opinions and make and sign decrees in vacation does not apply to proceedings of this kind. It is evident from the language used that such power is only conferred in cases where there are adversary parties or in cases taken under advisement by the chancellor at a term of the court. The minor did not even appear before the chancellor in the case under consideration.
It follows that the court erred in not setting aside the deed from appellant to appellees and in dismissing appellant’s complaint for want of equity.
It is insisted, however, that even if the court erred in this respect, the relief ¡asked for by appellant should not be granted unless there is a restoration of the consideration. The evidence shows that the infant had spent the money received by him for the land and if he should be required under such circumstances to restore the consideration as a prerequisite to avoid the contract, the protection given to an infant by the disabilities of minority would be seriously impaired and might often be destroyed. The reason that the contracts of a minor are voidable is because he is supposed to be improvident and likely waste what he has received. Beauchamp v. Bertig, 90 Ark. 351, and cases cited.
Therefore, the decree will be reversed and the cause remanded with directions to grant the prayer of the complaint and for further proceedings in accordance with law.
