127 Va. 431 | Va. | 1920
delivered the.opinion of the court.
This is a suit for partition of a, house and lot on Charlotte street, in the city of Norfolk, and incidentally to' remove a cloud on the title. The defendant demurred to the complainant’s bill and the trial court sustained the demurrer, and the complainant appealed.
The plaintiff is an infant claiming an undivided two-thirds interest in the house and lot, the whole of which is claimed by the defendant by virtue of a, purchase at a trustee’s sale. The deed of trust under which the defendant claims title was placed on the property of the infant by virtue of proceedings in a chancery suit pending in the Circuit Court of the city of Norfolk. The infant claims that the proceedings in that suit did not conform to the statute in such case made and provided, and that consequently he was never divested of his title thereto. This is the principal question we are called upon to decide.
Henry Parker, the father of the said infant, devised and bequeathed one-third of his real and personal estate to his wife, the mother of said infant, and the other two-thirds
It is claimed on behalf of the infant that the above men- . tioned suit was a suit to sell or to mortgage the lands of an infant, and in either event the proceedings are void, not merely voidable, because the bill did not “state plainly all the estate, real and personal, belonging to the infant,” and further because it did not make parties, “those who would be his (the infant’s) heirs were he dead.” The property having come from the father, it was claimed that, if the infant were dead, his heirs on the father’s' side would inherit it,.and they were not made parties.
Before the loan was made the case was referred to a master commissioner to make the following enquiries:
1. Of what estate, real and personal, the infant defendant, Henry Parker, is-possessed or entitled, where such estate is situated, what its fee-simple and annual value, and what liens, if any, there are against the same.
2. Whether the interest of the said infant defendant will be promoted- by encumbering or selling the real estate in. the bill mentioned, or any part thereof, and if encumbered what amount should be borrowed on the same, and how the proceeds should be distributed or invested if encumbered or sold.
3. Whether the rights of any person will be violated by such encumbrance or sale and investment.
4. Who would be the heirs at law or distributees of said infant defendant if he were dead, and whether all such persons are properly before the court in the cause.
In response to the enquiries, the commissioner reported
In Coleman v. Va. Stave Co., 112 Va. 61, 70 S. E. 545, it is said: “In reaching the conclusion that the proceedings in the original suit were invalid, we have not been unmindful of the fact that sound policy requires that judicial sales should be sustained as far as possible consistent with the rights of others, and that innocent purchasers are favorites of the law. But infants are also the favorites of courts of chancery. They are not only incapable of conveying their real estate, but are incompetent to consent to any of
In Brenham v. Smith, 120 Va. 30, 90 S. E. 657, it is said:
“It seems to be settled law that when a new jurisdiction is created by statute and the mode of acquiring and exercising that jurisdiction by the court upon which it is conferred is prescribed by statute, a substantial compliance therewith, at least, is essential, otherwise the proceedings will be a nullity.” Again, it is- said in the same case: “The mandatory requirements of the statute providing for the sale of infants’ lands were all manifestly thought by the legislature to be essential to the protection of infants; they have been scrupulously and sacredly observed and enforced by the courts; and it is, as we have seen, settled law in Virginia that a substantial compliance with them is just as indispensable as process is against a,n adult in an ordinary suit. Indeed, the procedure in such cases is process itself.” Again, it is said: “As the law now stands in Virginia, an affirmance of the decree appealed from would as clearly be a taking of property without due process of law as the enforcement of a judgment in ejectment rendered without process on, or appearance by the defendant.” Again, it is said: “The legislature has wisely surrounded such sales with all reasonable safeguards, and the courts have been astute to give effect to this protective legislation.”
In Watkins v. Ford, 123 Va. 268, 96 S. E. 193, it is said: “Nowhere has the property of infants been more carefully guarded against injudicious sales than in this State. The legislature has wisely surrounded such sales with all rear sonable safeguards, and the courts have been astute to give effect.to this protective legislation. The case of Coleman v. Stave Co., 112 Va. 61, 70 S. E. 545, affords a conspicuous illustration of the rule of decision in that class of cases.” -
We shall next consider what relief should be granted to the complainant, an infant, in the present suit. It is said in Clark on Contracts (2d ed.), p. 172: “As we have just stated, when a person avoids a contract made by him during his minority, he must, as a rule,'return the consideration he has received. As to whether or not he must do so as a condition precedent to disaffirmance, or whether the other party must be left to his action to recover the consideration after disaffirmance, and as to whether the consideration must be returned where it has been wasted or otherwise disposed of, the decisions are conflicting.
“(a) Where the contract is executory on the part of the infant, and he has not ratified it by his conduct, as explained above, it cannot, according to the weight of authority, be enforced against him, even though he retains the consideration received by him in kind. He need not return the consideration as a condition precedent to repudiating the contract and pleading his infancy in an action brought against him to enforce it. When he repudiates his contract, however, he no longer has any right to the consideration he has received, and a,t least, if he has it, the other party may .maintain an action to recover it. According to the weight of authority, if he has disposed of the consideration so that he cannot return it in kind, he cannot be held liable for it.”
The decree of the circuit court will, therefore, be reversed and the cause remanded to said court, with direction to the circuit court to overrule defendant’s demurrer to the complainant’s bill, and to permit the defendant to answer said bill, to set aside and annul the deed of trust aforesaid,
Reversed.