4 Md. Ch. 25 | New York Court of Chancery | 1851
This bill, as has been correctly observed, is founded upon the provisions of the 12th section of the Act of 1785, ch. 72, which authorizes the Chancellor to direct lands, tenements, &c., to be sold, in which infants, &c., have a joint interest, or interest in common with any other person or persons, when it shall appear, upon hearing and examination of all the circumstances, that it will be for the interest and advantage both of the infant, &c., and of the other person or persons concerned, that a sale should be made. It is not sufficient that one or any number of the parties less than the whole, would be benefited by the sale, but it must appear to the Chancellor that all will be benefited by selling the property. And, as will be seen upon reference to the case of Tomlinson vs. McKaig, 5 Gill, 256, 274, the jurisdiction of the Court cannot be sustained, unless the bill alleges that it will be for the interest and advantage of all parties interested, that the land should be sold.
The bill in this case contains the necessary allegations, and although by the supplemental bill, the infants appear as parties complainant, and by their next friend concur with the adult party in making the amendment, that does not at all dispense with the necessity of proof in support of it, as has been several times decided by this Court. If the infants had been made defendants, and by their answer by their guardian had admitted the facts alleged in the bill, still there would be no decree against them, but upon proof of all the material allegations. Kent and Boyle vs. Taneyhill, 6 G. & J., 1.
This being so, it must be evident that making the infants complainants, ought not to be permitted to obviate the necessity for proof, for if a practice of this sort were to prevail, the rule, as established by the Court of Appeals of not decreeing against infants, except upon proof, could in most cases he evaded. 1 take it, therefore, in this case, that no decree can he passed for the sale of the property in the proceedings mentioned, unless the proof shall make it apparent that it will be for the interest and advantage of all parties concerned.
The answer distinctly denies the allegation of the bill in that respect, and upon carefully reading the evidence, which is very contradictory, I do not feel myself warranted in saying that the allegation is sustained.
The counsel, in their written arguments, have presented and ingeniously urged many theories in support of the wishes and interests of their respective clients, hut in a case like the present, when the only question is, whether the Court shall sell the real estate and convert it into money, and when the law giving the power to do this, declares in terms, that the party asking for its exercise shall satisfy the Court that the interests and advantages of all parties concerned will he promoted thereby, the duty of the Chancellor is confined within narrow limits. If the advantage of a sale is not made apparent by the proof, the Court ought not to order the sale, and especially it should be reluctant to exercise the power in a doubtful case, when some of the parties entitled to the property are opposed to it. As the case comes before the Court upon the bill of review and supplement, the only party applying for the sale, at least, the only party who can be properly regarded as stand
But though a sale will not be ordered, I do not deem it proper to dismiss the bill, as urged by the defendants’ counsel, because by an amendment it may consistently, with the practice of the Court, be converted into a bill for a partition. And I shall therefore pass an order, directing the case to stand over, with leave to the complainants to apply for permission to amend.