8 Blackf. 10 | Ind. | 1846
Ejectment for the undivided third part of three lots in the town of Evansville, brought by Doe, on the demise of William H, John J., and Mary R. Chandler, against John Douglass. Verdict for the defendant; motion for a new trial overruled; and judgment on the verdict.
Both parties claim title under Asaph Chandler; the lessors of the plaintiff as heirs at law, and the defendant through a purchase, from Asaph's administrator.
The security of the administrator was approved by the Court, and he sold the undivided third part of the thirty acres for 300 dollars to Elisha Harrison, and executed a deed therefor. The lots in question are a part of the thirty acres.
The plaintiff objected, upon the trial, to this act of the' legislature, and the deed to Harrison under it, going in evidence to the jury, on the ground that the act was unconstitutional, and the deed by virtue of its authority void, but the objection was not sustained. On the motion for a new trial, the objection to their admissibility was renewed and again overruled.
The alleged unconstitutionality of this special act, forms the basis of all the errors assigned upon the record, and brings up the main question in the cause.
If then this act is unconstitutional, it is because it infringes some restriction upon the legislative power of this state, for that power is supreme except wherein restrictions have been
We have said tha.t no .conflicting authority, applicable to the present case, has come to our notice. That of Jones's Heirs v. Perry et al. 10 Yerger’s Tenn. R., is relied on by the plaintiff’ as being such. It is true that in the opinion of the Court, some of the grounds of decision in the cases upon which, we have relied are attempted to be impugned; but the facts of that case bear but a remote analogy to those of the present, and differ widely from most of those which it assails. There as here, indeed, was a special act of the
The dissimilarity of the case in Tennessee to that above cited from Massachusetts, is pointed out in the opinion of the Court already quoted. In commenting upon that case, it says: “ It results from what has been said that the case of Rice v. Parkman [16 Mass. 326] is not an authority in this case. If there were no other objection ‘to considering it as such, the dissimilarity of the two cases would prevent its application. There, the infants were not deprived of their property by the legislative act, but it was only transmuted from real to personal property manifestly to their advantage. Here, the property descended to these heirs has been sold to pay
It will thus be seen that the Massachusetts case is precisely the onp before us, while that from Tennessee “ is not an authority” in this case, as “the dissimilarity of the two prevents its application.” Differences might in like manner be pointed out between that case and others relied upon by this Court, but it is unnecessary. It is the duty of the legislature of the state to provide for the protection of real estate of infant heirs. That duty had not been performed by the passage of any general law, at the time the sale in controversy in the present case was authorized; and the legislature in those days was in the practice of discharging it in particular cases, as they were brought before it. A general law has since been passed authorizing the “ transmutation of the real estate of minor heirs into personal,” when it will be “ manifestly to their advantage, ” and the necessity for the passage of these generally objectionable special acts has ceased. See law regulating Probate Courts.
Of so many, then, of the heirs of Chandler as were minors at the sale under the authority of the legislature, we regard the title as divested by that act; but one of them is shown to have been at that time of age, and that one was John G. Chandler, who made the sale. He has since quit claimed to the lessors of the plaintiff; but his title was clearly barred by his own acts, and he could therefore convey no right to the lessors in this case.
being interested in the cause, was absent.
The judgment is affirmed with costs.