Vandalia McKinney, a married woman, brought ejectment ha the court below, to recover possession of ce'rtain premises inherited by her.
The defendants set up title under -a foreclosure in chancery of a mortgage made by her during her coverture, and while yet an infant. They showed proceedings in chancery, wherein she and her husband were defendants, from which it appears that a bill was filed by the mortgagees, setting up that this mortgage was made to secure a debt of the husband, and that the property beloiaged 'to the wife. A guardian ad litem was appointed for her, and his default, for want of answer, was taken, and the court refused, on a subsequent motion, to set it aside. A final decree was made June 29th, 1852, for a sale. Plaintiff came of age August 15th, 1852. The property was sold under the decree to some of the defendants in the chancery suit, and the present defendants (plaintiffs in error) claim through that purchase.
We regret that the cause was submitted chiefly on briefs, Avithout a full oral argument, as the questions presented are important, and in some respects novel. We have therefore been compelled to examine them for ourselves, Avithout the aid of a criticism, by counsel, of the cases bearing upon the subject. The proceedings in the chancery suit are of ail extra-. dinary character. The bill showing that the mortgage was made for the debt of another, the invalidity of such an act by an infant was so obvious that a guardian ad litem should have had no difficulty in suggesting the defect to the court. But his failure to do so should not have prejudiced the infant; for the practice has always been perfectly well settled that a court of chancery can not grant a decree even upon his admissions. As against an infant, the case must always be made out by proof.— Thayer v. Lane, Walk. Ch. 200. The whole proceeding is suggestive of the strongest suspicion of improper dealing; for we can not believe that the able judge Avho granted the decree could have had the actual state of the case presented to him. The decree can not be sustained upon any principle whatever. If appealed from, it must necessarily have been reversed. The question before us is, however, whether it can be attacked as invalid. And this is a question of the gravest consequence, involving, on the one side, the sanctity of the decrees of courts, and on the other, the question whether the invalid contracts of infants can, by proceedings during infancy, be placed beyond their power of disaffirmance.
The rule has always prevailed in England and in this country, of giving infants a day in court after their majority. But where a mortgage is in question, and the court, instead of a strict foreclosure, decrees a sale, it has been held in many eases that the infant is bound by such sale. The court of chancery of New York, in Mills v. Dennis, 3 Johns. Ch
The contract sought to be enforced, in, this case, Avas not merely voidable, but actually void. It was a contract to secure the debt of another, and could not be beneficial to the infant. It was also made during coverture. It was held in Thornton v. Illingworth, 2 B. & C. 826, that a contract of .this description could not be affirmed, and that, if ratified, the action could only he on the mere, promise, and did not relate back. It Avas held in Sandford. v. McLean, 3 Paige,
In order to sustain the sale under the decree before us, it is necessary to hold that a contract which is a nullity, and which can not be confirmed by an infant under age, at all, and can only be made valid by a new act, after all disabilities have been removed, is made absolutely and irrevocably binding by the action of a court, while the infant was still under age, and where the only right of appeal given by statute expired before her majority. If such be the law, it is a very singular state of things, and reflects no credit on our judiciary system.
We are not, however, without light upon this subject; ■and while cases like the present can seldom arise, we have decisions on those which are analogous in principle.
In Holford v Pratt, Cro. Jac. 464, it was held that where writ of error lies, an infant can avoid a judgment against him in no other way; but where no writ of error can be had the judgment may be attacked collaterally. The correctness of this doctrine is recognized in Austin v. Charlestown Female Seminary, 8 Metc. 196. And that infants can not be regarded as in laches, for not appealing, is decided in Vallier v. Hart, 11 Mass. 300.
In Cronise v. Clark, 4 Md. Dec. Ch. 403, already referred to, it was held that a married woman, whose mortgage made in infancy was foreclosed in chancery by a special proceeding, was not obliged to appeal from, or move in, that proceeding, but might treat it as a mere nullity. And in England, the decisions in bankruptcy are important in throwing light on this matter. It has been decided in many cases that a minor can not be made a bankrupt, because his trading contracts are
We think that in the absence of any right of appeal reserved to infants after they come of age, we can not hold a decree valid against them which is made during infancy, upon the basis of their unauthorized contracts, and in which their inheritance is sought to be charged for liens created by them, and not by their- ancestors, or other adult parties. In the case before us, the whole defects of the proceedings are patent on the record, and every purchaser must know that the decree was made against an infant, on an infant’s mortgage, for her husband’s debt. To sustain a title under-such a decree, would be to destroy all the safeguards which the law has devised for the protection of minors against their improvident agreements. While no case can be found which has maintained the validity of such piroceedings, we think the principles underlying the authorities we have re-, ferred to, fully sustain us in our views. We deem it proper, in this connection, to express our regret at the unsatisfactory condition of the law upon chancery appeals. While the limitation on writs of error and certiorari does not begin to run until after majority, and then runs two years, the law gives but forty days in which to appeal from a decree in chancery, and contains no saving clause for infants at all. We have had occasion to perceive great hardships under
We think there was no error in the ruling of the circuit judge, and the judgment must be affirmed.