Rivers v. Durr

46 Ala. 418 | Ala. | 1871

B. E. SAEEOLD, J.

The jurisdiction of the chancery court to sell land for division is not so much involved in this case as the question, whether the court, in the exercise of its guardianship over the person and property of minors, has authority to sell the real estate of the minor. Of this latter there can be no doubt.

In Ex parte Philips, 19 Vesey, 117, Lord Eldon said, “In the case of the infant it is settled, that as a trustee out of court cannot change the nature of the property, s© the court, which is only a trustee, must act as the trustee out of court; and finding that a change will be for the benefit of the infant, must so deal with it as not to affect the powers of the infant over the property, even during his infancy, when he has power over one species of prbperty and not over the other.” That is, if the money of an infant be laid out in land, and by law he may dispose of personal property before he becomes adult, his power of disposition during infancy is not to be prejudiced. He is bound by the exchange, but he may treat the land as personal property if he chooses.

If a bill be filed relative to an infant’s estate or person, the court acquires jurisdiction, and the infant, whether plaintiff or defendant, and even during the life of its father, or of a . testamentary guardian, immediately becomes a ward of the court. — Eyre v. Countess of Shaftesbury, Lead. Ca. in Eq. vol 2, part 2, p. 139. Decrees made in suits by infant plaintiffs are as binding upon them as upon adults. Lord Hardwicke observed that he knew of but one exception. In that ease the infant was a defendant to a cross-bill, and both cases being heard at the same time, he had leave to show cause, when he came of age, against his own decree.— Gregory v. Molesworth, 3 Atkins, 626; 1 Dan. Chan. Prac. 96.

In this case, the sale from which’the defendant derived his title, was made at the suit of the plaintiff. She claimed a right to what she asked, and those who alone could contest with her assented to it. The jurisdiction of the court attached, and we must presume that the change of property was ascertained to be for the interest of the minor.

The judgment is affirmed*