70 Ark. 415 | Ark. | 1902
The questions are:
First. Could the infant appellees avoid the original decree as against the representative of the Rose estate?
Second. Could they avoid it as against the appellant Blanton ?
Third. Could Mrs. Ada Neal avoid the decree?
To what cases does the statute apply ? Where the effect of the decree is to divest the infant of an interest in land, or where a conveyance is required of an infant in lands where he has a personal interest under the ancient chancery practice, it would have been proper in such cases to reserve in the decree a day for the infant to show cause against it after becoming of age. “I take it to be the course of the court,” says Lord Chancellor Hardwicke, “not to give any day unless a conveyance is directed in form or substance.” Sheffield v. Buckingham, West’s Rep. 684; Napier v. Lady Effingham, 2 P. Wms. 403; Cary v. Bertie, 2 Vern. 342; Eyre v. Countess of Shaftesbury, 1 P. Wms. 403; 1 Dan. Ch. Pr. 165; Dow v. Jewell, 21 N. H. 490; Long v. Mulford, 17 Ohio St. 484, 506; Harris v. Youman, Hoff. 178; Pope v. Lemaster, 5 Litt. (Ky.), 77. Under the old English chancery,where there was a foreclosure— strict foreclosure — the infant had his day in court after coming of age. Sayle & Freeland case, 2 Ventris, 350; Price v. Carver, 3 M. & C. 162, 3. “But in the ease of decrees for the foreclosure and sale of mortgaged premises, or for the sale of lands under a devise to pay debts, the infant had no day.” 2 Kent, Com. 245; Booth v. Rich, 1 Vern. 295; Scholefield v. Heafield, 7 Simons, 667; Cooke v. Parsons, 2 Vern. 429; 1 Dan. Ch. Pr. 165 et seq.; Wilkinson v. Oliver, 4 Hen. & Munf. 150, and other cases cited in Am. Ch. Dig. (Decree), 497; Mills v. Dennis, 3 Johns. Ch. 367, and cases cited in note.
The reason for the distinction and the policy of the statute does not concern us here. It follows that the infant appellees could avoid the decree as to appellant Blanton. The case of Moore v. Woodall, 40 Ark. 42, and Boyd v. Roane, 49 Ark. 397, relied upon by appellee, are not in point; The question under consideration was not raised or discussed in those cases. Moreover, in both a sale of the land was decreed to satisfy liens.