18 Mo. 32 | Mo. | 1853
delivered the opinion of the court.
This .was a motion made in the Franklin Circuit Court, to set •aside a decree heretofore made by that court in the case of Elijah McLean vs. William Hendricks, Bernard J. Hendricks, John J. Hendricks, Mary Jane Hendricks, and Sophronia Ann .Hendricks.
The motion is as follows, after naming the case as above :
On the trial of this motion, the original bill of McLean vs. Hendricks and others, together with the summons and return of. the sheriff thereon, with various entries upon the record, and the answer of the guardian ad litem, were given in evidence by the said Mary Jane Hendricks.
The defendant offered in evidence the record and proceedings of a suit for partition, by Bernard Hendricks and others against Jacob Feeze.
The bill of complaint, filed by Elijah McLean originally, upon which the decree was made, on which the motion in this case was designed to operate, represented, that some ten or twelve years before the filing of the bill, one William Hendricks, of the county of Franklin, wishing to enter certain lands situated in said county, and not having the money, applied to one Ridenhour for a loan of the necessary amount. Finding that he could borrow the amount by giving security for the payment of the same, he executed his note, with one John Jones, as security, for the sum of one hundred dollars. With this money and with other money kept back from his creditors, he entered the lands. • The bill charges, that he determined to defraud his security, Jones, and to defraud the complainant, McLean, to whom he was indebted about $T0 ; that the entry was made in the name of his son, William James Hendricks, then a minor ; that this was ■ done to defraud his creditors ; that said William J. Hendricks had no knowledge of the entry of these lands in his name, or that the samé was designed to be entered in his name at the time ; that the same was designed to
Summons issued on this bill against the defendants, William, Bernard J., John J., Mary J. and Sophronia A. Hendricks. This writ was served as follows : “ Executed the within on the second day of March, 1849, by reading, the plaintiff’s bill of complaint and summons to the same attached, to and in the hearing of the said William Hendricks, on the above day; also, by delivering him on the same day a true copy of the plaintiff’s bill of complaint. A. W. Jeeeuies, Sheriff,
By J. W. G-ReeNSTREet, Dept.”
On the 2d of April, 1849, the answer of the guardian ad litem, was filed for the infants. The answer is as follows : “'This defendant cannot deny the facts and allegations in said complainant’s bill of complaint contained.”
The record shows, that John D. Stevenson was appointed guardian ad litem for Bernard, John J., and Sophronia A. Hendricks on the 2d April, 1849.
1. The record shows that the infant defendants, named in McLean’s bill, were not served with the process of the court. The return of the sheriff is silent as to them. He shows service on William Hendricks, but says not a word as to the .other defendants. They were not served. The order of the court, then, appointing Stevenson guardian ad litem, was erroneous. These defendants were not before the court; they were not summoned to appear, nor does the record any where show that they were in court or moved for the appointment of a guardian ad litem. The court, then, had no authority, upon the answer of the guardian ad litem, thus appointed, even confessing the facts alleged in the bill of complaint, to make a decree against these defendants, minors as they were. In Shropshire v. Reno, 5 Dana, 584, the court of appeals of Kentucky decided that, where there was no service of process on the infants, but a guardian ad litem was appointed and answered for them, that such appointment of a guardian did not cure the failure to have process executed on the infants ; that the appointment, itself, was irregular and did not bring the infants before the court; that where it is obvious that the interest of the infants is affected by the decree, and they are necessary parties to the suit, a decree, when they were not before the court, would bo erroneous. No decree can be made
2. As to the point alleged as error, in said decree, not giving day to the said defendants, after they became'of age, to appear and show cause against the decree, this court is of opinion that that is not error. That it is a rule 'generally pre
The doctrine of giving a day to the infant, to show cause, is thus treated of in Daniel’s Chancery Practice, 1 vol. 222, sec. 7 : “ Another ground of error, for which a decree against an infant may be impeached, is, that it does not give the infant a day after he comes of age, to show cause against it, in cases where he is entitled to such indulgence. This arises from the practice which was formerly adopted in courts of equity, from analogy to the rule of law, by which, where an infant was sued on the specialty of his ancestor, he might plead that he was an infant, and that he ought not to answer until he was of age, upon which the parol demurred ; that is, all further proceeding was stayed till the infant attained twenty-one. In imitation of this rule, courts of equity held that, in case of lands in fee, descending upon an infant, the parol should demur in equity as well as at law, and that, whether the estate was equitable or legal. From analogy to this rule, by which the parol was made to demur, wherever the real estates of an
The insertion of this clause, in a decree for a conveyance, by an infant, of his estate, was so strictly insisted upon, in all cases, that the omission of it has been considered an error in. the decree.
In Eyre v. The Countess of Shaftesbury, 2 P. Wm’s, 102, ii is said that, in all decrees against infants, even in the plainest eases, a day must he given them to show cause, when they come of age. But in the case of Sheffield v. The Duchess of Buckingham, West’s Rep. 682, Lord Hardwicke said, “ Bills of review are' of two kinds : the one in the nature of a writ of error coram vobis, for error apparent on the face of the decree, and this is, of course, on making a deposit of £50. The other, which is now an established proceeding, though not of course, but discretionary, and is upon matter which, though existing before the decree, yet came to the parties’ knowledge since, and this is on petition and affidavit, that it did so, and must appear to be such matter as will overturn the decree, or make it doubtful.”
This kind of proceeding was first in Lord Bacon’s time, and
The present application is for a bill of this last kind. Eor the first, there is no occasion for an application to the court. Let us consider, then, the grounds of it.
As to the first, “ that no day is given. ” This, if it is error, is error on the face of the record, and,_ therefore, may be taken advantage of without such a bill of review as this is. And it is a new doctrine to me, on a bill to have the trusts of the will only performed, to have a clay given, when the infant is plaintiff and the decree is according to 'the prayer of the bill. The case of Lady Effingham and Sir J. Napier, in the house of lords, is the only case, and the reason the lords went on there was, that it was for relief on a kind of fraud, and it was to convey the infant’s estate. It was, therefore, a very particular case and not to be argued from.
And let this decree be founded on which bill it will, no conveyance of the real estate is directed, and I take it to be the course of the court not to give day unless a conveyance is directed, either in form or substance. This doctrine had been declared nearly forty years before the case of Sheffield v. The Duchess of Buckingham, and in the case of Cooke v. Parsons, 2 Vernon, 429. In Cooke v. Parsons, which was on a bill of review, an error assigned was, that lands were decreed to be sold pursuant to the will, for payment of debts, without giving the heir a day to show cause, after he came of age. The Lord Keeper confirmed the decree,‘ for the lands being devised to be sold for payment of debts, there is nothing descends to the heir, and an immediate sale may be decreed without giving him a day to show cause, though an infant; but if he had been decreed to have joined in the conveyance, then he must have had a day after he came of age.”
In the case of Blatch & Agnis v. Wilder and others, 1 Atkyns, 419, decided by Lord Hardwicke, a short time before the. case of Sheffield v. Buckingham, it was agreed that, where lands are devised to trustees, to be sold for the payment
Daniel, in his chancery practice, says, there is one case in which the rule laid down by Lord Hardwicke, in Sheffield, v. Duchess of Buckingham, is subject to exception, namely, that of foreclosure against an infant. In that case, although no conveyance is required from the infant, either in form or substance, he will be allowed six months after he comes of age, to show cause against the decree ; but in such a case, he can only show cause against the decree, for error in it. He may not .unravel the account, nor is he so much as entitled to redeem the mortgage by paying what is due.
In Booth v. Rich, 1 Vernon, 295, the court said, there being an infant in the case, we cannot foreclose him, without a day to show cause, after he comes of age ; but the proper way is, to decree the lands to be sold to pay the debts, as that will bind the infant.
In the case of Price v. Carver, 14 Eng. Ch. Rep. 2 part, 162, decided August, 1837, the lord chancellor said: “The question in this case was, whether the infant defendants were to have a day to show cause, after attaining twenty-one. The decree, in the event of the mortgage not being redeemed, after directing a foreclosure, directs a surrender or conveyance of the legal estate to the plaintiff.
“ I proceed to consider the only question argued before me, namely, whether, supposing the decree to be in other respects correct, the infant defendants ought to have a day to show cause after attaining twenty-one. That they would have had a day to show cause, according to the course hitherto pursued, is quite clear, the decree being both to foreclose and to procure a conveyance from the infants. But it is said that the statute of 11 Geo. 4, and 1 W. 4, chap. 47, sec. 10, has altered the course of proceeding. That statute only enacts, that the parol shall not, in future, demur. If the parol demur
Chancellor Kent had before him the principal questions which were afterwards decided by the lord chancellor in the above case of Price v. Carver, in the ease of Mills v. Dennis. This case of Mills v. Dennis was decided in 1818. In it the chancellor said : “It was the ancient and has been the settled practice of the court that no decree should be made against an infant without giving him a day (which was usually sis months) after he comes of age, to show cause against it, and he is to be served with process of subpoena, for that purpose, on his coming of age. But though, in the case of a foreclosure of a mortgage, the infant has six months to show cause, yet, he cannot then be permitted to unravel the accounts, nor will he be entitled to redeem the mortgage by paying what is reported due. He is only entitled to show error in the decree. If, however, instead of foreclosing the mortgage against the infant heir of the mortgagor, and thereby giving him a day after he becomes of age, it be decreed that the lands be sold to pay the mortgage debt, then, it seems to be understood that the sale will bind the infant.” The chancellor, after directing that the plaintiff must prove his debt before the master, and that the master report the proof, the amount of principal and interest due, &c., concludes: “Every sale so decreed, will be absolute, without any day to show cause.”
In the case of Wilkinson’s Adm’r v. Oliver’s Representatives, 4 Henning & Munford, 450, the question submitted to the court was, whether the decree, which was for the sale of some lands belonging to infants, to pay debts, should allow to them any time after they came of age, to show cause against it, as commissioners were to conduct it. By. the chancellor: Wherever an infant is decreed to do an act, he must have six months, after full age, allowed him to show cause against the decree, as where he is foreclosed. But, where lands are decreed to be sold for the payment of debts, there is no necessity
From all the cases which I have had the opportunity of examining on this subject, I think the following principles may be justly set down as deductions : That no day is given where the decree directs the sale of land to be made for payment of debts, and the conveyance is not to be made by the infant. Where he is required to unite in the conveyance, or to make the conveyance, time is given him to show cause against the decree, after his maturity. These cases satisfy me that, under our system of practice, no day is necessary to be given to the infant. Here, by our statute, the decree itself passes title; no act is required to be done by the infant. The statute is general and makes no exceptions in favor of infants. They have two years allowed after final decree, for appealing, “In all cases where the court may decree the conveyance of real estate or the delivery of personal property, it may, by decree, pass the title of such property, without any act to be done on the part of the defendants, when, in its judgment, it shall be proper.” R. C. 1845, p. 852. “No representatives of a deceased party or other person interested in the cause of action, shall be bound by any order or decree in any cause to which they do not become and are not made parties.” R. C. 1845, p. 850. This section shows, that such decree will be binding upon all such as were made parties. No bill of review is allowed after five years from rendition of final decree. “ No sale or conveyance upon a bill for foreclosure or satisfaction of a mortgage regularly made by a court of chancery, shall be affected or prejudiced by the setting aside of any decree on the appearance of a defendant, as provided in the statute.” R. C. 1845, p. 852.
No exception is found in our statute regulating the practice of courts of chancery in regard to infants. Here the courts decree against them as other defendants, only requiring that they be served with process and make proper appearance by
The day was never given in the English courts of chancery, where the decree affected only the personalty. It was where the real estate of the infant defendant was affected by the decree, and not in all cases of this kind, but where, in the language of Lord Hardwicke, “ a conveyance was not directed, either in form or substance, except foreclosure of mortgage. Now, in England, wherever the courts take from the infant the legal estate of property, by decree, for payment of debts, no day is given.
Upon the whole, then, we come to the conclusion, that the doctrine of giving day to infant defendants, to show cause against the decree, after they become of age, has not been considered as forming a part of our chancery practice; and that it is, in many respects, repugnant to the provisions of our chancery codes, as prescribed by the legislatures in 1825, ’35 and ’45. See statutes regulating practice in chancery, passim.
In 1825, the legislature declared that there should be no such thing as allowing the parol to demur. The real estate then, which had descended to the infant heirs, charged with the debts of the ancestor, could be sold at law, notwithstanding the minority of the infants. No delay was occasioned by such infancy. Why, in chancery, should this day be given ? The sales under decrees passed the title absolutely and unconditionally. Nay, the decrees affecting the real estate of defendants (all defendants) passed and vested the titles according to such decrees, without any conveyances from the defendants. These decrees became the foundation of titles to estates. Let it now be said, that all such decrees, where infants were defendants, and to whom no day is given in the decree, are void, because no such day is given, and a new series of contests, in our courts of justice, will spring into life. Sales and conveyances .cannot be set aside after a lapse of a few years. Purchasers under them are secure ; but decrees, which were sup
The judgment below must be reversed, and the cause remanded,