Mills v. Dennis

3 Johns. Ch. 367 | New York Court of Chancery | 1818

The Chancellor.

A decree cannot safely be obtained against an infant, upon the mere fact of taking the bill pro confesso, or upon an answer in form by-the guardian, ad litem. The answer in such cases generally is, that the infant knows nothing of the matter, and therefore, neither admits nor denies the charges, but leaves the plaintiff to prove them, as he shall be advised, and throws himself on the protection of the court. A decree upon such an answer would not bind the infant, and he could open it, or set it aside, when he comes of age. No laches can be imputed to an infant, and no valid decree can be awarded against him, merely by default. The plaintiff, in every such case, ought to prove his demand, either in court, or before a Master ; and the infant is usually entitled to a day to show’ cadse, when he comes of age.

- 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 six months) after he comes of age, to show cause against it; (2 Vern. 232. 342. 2 P. Wms. 403.) and he is to be served with process of subpoena, for that purpose, on his coming of age. (Bingham on Infancy, p. 115.) But though in the case of a foreclosure of a mortgage, the infant has his 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, and this was declared to be the settled rule by Lord Talbot,-in Mallack v. Galton; (3 P. Wms. 352.) and was understood to be the rule in the case of the Bishop of Winchester v. Beaver, (3 Vesey, 317.)

If, however, instead of foreclosing the. mortgage against the infant heir of the mortgagor, and thereby giving him a day after he comes 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. (Booth v. Rich, 1 Vern. 295.) So if lands devised to be sold,- for payment of debts, be decreed to be sold, the infant has no day, after he comes of age, unless he be decreed to join in the sale. (2 Vern. 439.) The English practice, until lately, has been to foreclose, instead of selling the mortgaged premises. Thus, in Goodier v. Ashton, (18 Vesey, 83.) there was the usual decree of foreclosure against an infant, with a day to show cause, though it was then suggested to the court, that a decree for a sale would be more advantageous to the infant, as the estate might- be mortgaged for less than its value f and it was said to be the rule in Ireland to direct a sale in all cases, instead of a foreclosure. But the Master of the Bolls did not incline to malee1 such a precedent against the uniform practice. This course was,however, shortly afterwards, adopted by Lord Eldon, in Mondey v. Mondey (1 Vesey and Bea. 223.) who said, that if there was no precedent, (as he believed there was not,) he would then make one, and he directed an inquiry, whether it would be for the infant’s benefit, that the estate should be sold.

The practice, with us, has been to sel!, and not to foreclose, as well where infants, as where adults are concerned. I think this course must generally be most beneficial to the infant, as well as to the creditor; and there can be no doubt of the authority of the court to pursue it. The court may change the estate of infants, from real into personal, and from personal into real, whenever it deems such a proceeding most beneficial to the infant. (Amb. 419. 6 Vesey, 6. 3 Desaus. S. Caro. Rep. 18. 21.) The proper inquiry in such cases will be, whether a sale of the whole, or only of a part, and what part of the premises will be most beneficial; and this has now become the usual inquiry, even where infants., are not concerned, as appears from the case of Brinckerhoff v. Thalhimer. (2 Johns. Ch. Rep. 486.) The master must not only make a special report on that point, in every case where infants are defendants, but the plaintiff must, also, prove his debt before the Master, in the same manner as if nothing had been admitted by the answer ; and the Master must report such proof, and also the computed amount of the principal ana interest due, and to'.what extent, and of what part of the premises, (if any part short of the whole,) a sale would be sufficient to raise the debt, and at the same time be most beneficial to the infant.

Beene

Every sale so decreed will be absolute, without any day to show cause.

The following order was entered.- “The plaintiff’s bill i of complaint in this cause having been taken pro confesso, against the defendants, &c. and this cause having this day been brought on to be heard, on the said bill so taken pro confesso, against the said defendants, and upon bill and answer, as to the above named defendants, Thomas Doty, jun. and Elbert Doty, who are infants: whereupon, after reading a notice of hearing of this cause, and admission of the due service thereof, by the guardian ad litem to the said defendants, Thomas Doty, jun. and Elbert Doty; and after reading the said bill and answer, and an affidavit of the solicitor for the plaintiff, proving the regularity of the proceedings in this cause, in taking the said bill pro confesso, against the above named defendants, as aforesaid, (which affidavit is filed,) and after hearing counsel for the plaintiff no counsel appearing for the said defendants, Thomas Doty, jun. and Elbert Doty, the said infants, to oppose the same; it is ordered, adjudged, and 'decreed, that it be referred to one of the Masters of this court to take proof of the material facts stated in the plaintiff’s bill of complaint, and particularly, whether the bond and mortgage, in the plaintiff’s bill mentioned, were duly executed, as therein set forth; and if the said bond and mortgage were duly executed, that the said Master compute and ascertain the amount due to the plaintiff for principle and interest thereon: And it is further ordered, that the said Master, under the circumstances of the case, in reference to the amount due to the plaintiff for principal and interest on the said bond and mortgage, and the situation, nature, and value of the mortgaged premises, ascertain whether a sale of the whole, or a part only, and what part, of the said mortgaged premises, would be for the benefit of the said infant defendants; and that the said Master report on all the matters, aforesaid, to this court, with all convenient speed. And all further directions are reserved, until the coming in of the said report.