#### Garland, &c. v. Loving, &c.

March, 1823.

infant’s Realty — Sale of — When Directed.* — In what cases, and under what circumstances, a court of equity will direct' the sale of the real estate of infants. (See Rev. Code of 1819, vol. 1st, pages 409, 410, from the 16th section, to the 23d inclusive )

This was an appeal from the Lynchburg chancery court.

Spotswood Garland and John Whitehead, guardians of the infant children of James Loving, and Samuel Loving, and Lunsford Loving, exhibited their bill and amended bill, against the said James Loving and his wife, and the said infant . children, together with RobSrt Kincaid, Solomon Matthews, and Nathan Lofftus. The bills were regularly answered, and proofs taken. The suit was heard by consent, and the chancellor dismissed the bills with costs. The case was as follows:

On the first of June, 1816, the defendant James Loving, being indebted to the defendant Nathan Lofftus, in two sums, viz: $2,000 and 17841. for the purchase money of a *tract of land, in the county of Nelson; and the plaintiffs Samuel and Lunsford Loving, being bound with the said James, as sureties for the payment of the said money, the said James conveyed the said land to Robert I. Kincaid, and Solomon Matthews, in trust to indemnify the said Samuel and Lunsford, against the consequences of the said surety-ship, and gave power to the trustee or either of them, to sell the land, whenever the said sureties should pay, or become liable to pay, the said money.

Afterwards, on the 24th of August, 1816, the said James Loving, being desirous to provide for the support of himself, his wife and children, for the education of his children, and for their advancement after his death, conveyed the same tract of land to the complainants, Lunsford and Samuel, in trust for the support of himself and wife, for the schooling and raising of his children, and after his death, ior his children in fee.

On the 25th of October, 1819, the said James Loving, by another deed, conveyed to the said Samuel and Lunsford, other property, being all that he had, in trust, for the support of his wife and children, with an authority to sell for the payment of the debts of the said James Loving, and to appropriate the próceeds, at the discretion of the trustees, to the education and support of the children, and to the support and maintenance of the wife.

On the 31st day of January, the said James Loving, being considerably in debt, owing to the said Lofftus among others a considerable sum of money, and part of the purchase money, of the first mentioned tract of land, between $700 and $800, being yet due, for which the said Lunsford and Samuel were then liable; the whole amount of the said James Loving’s debts, being upwards of $4000, and the whole value of the fund, exclusive of the tract of land aforesaid, held by the plaintiffs Lunsford and Samuel, not much exceeding in fair value, $5000, and being certainly not more than adequate, if forced into market, to pay the debts then chargeable upon it; the plaintiffs were ^reduced to the alternative, as they believed, of selling all the last mentioned fund, and leaving nothing for the support of the said James and his family, but the tract of land aforesaid, or of selling the said tract, paying the debts out of the proceeds of the sale, vesting the residue in some valuable property, and applying it with the other fund, to the purposes of the trust. The defendant Lofftus, was willing to give the sum of $10,000, for the land, which was deemed an excellent price; and the plaintiffs united with James Loving in a contract, by which they agreed to sell the said land to Lofftus, for the above sum. The plaintiffs being advised, that they could not make a good title without the aid of a court of equity, (as the rights of infants were concerned,) and the contract with Lofftus, being considered by every judicious man, as the most advantageous that could be made, and manifestly for the benefit of the infants, filed a bill, and amended bill, in the Lynchburg chancery court.

The objects of the bills, were; 1st, to have the contract with Lofftus ratified, and the proceeds applied, under the direction of the court of chancery, to the objects of the trust: 2ndly. If that could not be done, then that another sale of the land should be authorised: 3rdly. If neither of these objects could be effected, then that the trustees Kincaid and Matthews, should be directed to sell the land under the trust deed to them.

The infants answered by a guardian ad litem, appointed by the court. The adult defendants also put in their answers. All of them assented to the prayer of the bill.

Depositions were taken, shewing that the *160interest of the infants manifestly requires the confirmation of the sale, and if that cannot be done, a re-sale of the said land.

The chancellor dismissed the bill, and assigned the following reasons.

I. As regards the rights of infants, he does not consider the case as coming within the act. 1. Because *the bill had not been treated as one within the act, as the counsel did not mention to the court, the object of the bill, when the guardian ad litem was appointed, and the court, therefore, did not take the precautions required by the act. 2. Because the infants having a father alive, who is their natural guardian, the appointment^ of other guardians by the court was irregular. 3. Because the infants had nothing but an equitable interest in the subject, which would not accrue to them, till after the death of their father.

II. As it regarded the relief sought by the plaintiffs, Lunsford and Samuel, in a sale of the land by the trustees, Kincaid and Matthews, he thought there was no necessity to come into his court, because the trustees had a clear authority to sell, and were willing to exercise it.

From this decision, the plaintiffs appealed.

C. Johnson, who was counsel for both parties, submitted the case without argument.

*

Infant’s Realty — Sale of — Confirmation by, Court ot Equity. — Where the guardians of infants have made a sale of their ward’s land, upon a bill by them to affirm the sale, the case will be a proper one for the consideration of the court under the statute providing a moc e by which a guardian may obtain a sale of his ward’s lands, and if the court should be satisfied that the interests of the infants manifestly required a sale, and that the sale that had already been made was advantageous to them, it may confirm it instead of requiring a new sale to be made under its decree. To this effect, the principal case is cited in Goddin v. Vaughn, 14 Gratt. 122; Daniel v. Leitch, 13 Gratt. 217; Faulkner v. Davis, 18 Gratt. 669, 670, 671. The principal case is also cited in Faulkner v. Davis, 18 Gratt. 672, 696, 698, 700.

See further, monographic *note*on “Infants” appended to Caperton *v.*Gregory, 11 Gratt. 505.

JUDGE COALTER,

March 25. delivered the opinion of the court.

The court is of opinion, that this is a proper case for the consideration of the superior court of chancery, under that part of the act of assembly, concerning guardians, orphans, &c., which prescribes the mode by which a guardian may procure a sale of the real estate of his ward; and that if any thing occurred in relation to the appointment of the guardian ad litem, or in other respects, which was not satisfactory to the chancellor, so that, in his opinion, further proceedings were necessary to enable him to pronounce a decree on the merits, the bill ought *not to*have been dismissed, but such further proceedings directed.

The court is further of opinion, that in exercising his jurisdiction, under the act aforesaid, the chancellor is *necessarily confined to the objects pointed out by the act, to wit: to decree_ a sale of the property of the infants, provided, it manifestly appears to be their interest, that such sale should take place, and that the rights of others, will not be violated thereby; and finally to direct and secure the investment of the fund for their benefir, in such manner as the court may seem best. That part of the bill, therefore, which seeks to apply the proceeds of the sale to the exoneration of James Loving’s personal property, from the debts by which it is probably bound, for aught that at present appears in the record, is not necessarily connected with a fair and proper sale of the land.

Should the decree, directing the investment of the fund, authorise its being invested, to a given extent, in any species of property belonging to the said James Loving, it will be for the consideration of the court, and those executing such decree, whether it will be advisable to invest it there, or not.

As to those whose rights are not to be violated by the decree; the court is of opinion, that in relation to the creditors of the said James Loving, either prior or subsequent to the execution of the deed of the 24th of August, 1819, if there be any such, who may hereafter be enabled to charge this land with their debts, such charge must of course continue to exist against the fund arising from the sale thereof; and the decree ought to provide, that the’ fund so raised and invested, is to stand charged with the debts of the said Loving in like manner as they would have been charged on the land aforesaid, had these proceedings never taken place: and it may, therefore, be worthy of the consideration of the chancellor, should an investment of any portion of the fund in personal property be decreed, and James Loving shall hold any such property, which can be acquired on fair terms, whether it will not be proper to invest it there, and to provide that the consideration shall be paid to his creditors, in exoneration of any possible charge by them on the said fund; *and in like manner to apply the proceeds of the property conveyed by the deed of the 21st of October, 1819, to1 the discharge of those debts, if necessary, or to invest that also, as a portion of the fund belonging to the cestuique trusts; subject, in like manner, to debts as aforesaid.

As to the rights of James Loving, in the' trust property, and the contingent dower interest of Nancy, the wife of the said James, the court is of opinion, that a sale of the property, subject to the latter, might greatly deteriorate the price, and probably ought not to be made, unless she will unite in the conveyance, at least on such terms as to the court may seem proper, considering her interest still secured to her as a cestuique trust, under the deed and decree. And that James Loving must also unite in any sale and conveyance that is made.

As to any others who may possibly come into being, or who may be interested in the property, at or before the death of James 'Loving, other than those now before the court, it is possible that their interest will be most effectually guarded and benefited, by those proceedings which may be found necessary, for the interest and protection of those now before the court, and who claim an immediate interest in, and a right to maintenance and education, out of the profits of the estate. Those parties are the presumptive, ultimate cestuique trusts, and are entitled to the immediate aid and protection of the court, so far, as that can be properly extended to them. They are the more especially entitled thereto, inasmuch, as if nothing is done to change the situation of the property, it cannot be foreseen how far creditors, up to the time even of the death of James Loving, may come in upon it, so as finally to defeat the rights of every one. But, nevertheless, the court is of opinion, that no sale can be made, except subject to the rights of such future possible claimant. It will, *161therefore, be for the consideration of the chancellor, whether a fair and proper sale of the property, can be made under that condition, subjecting the fund, to be invested as *aforesaid, to the purchaser for his indemnity, against any .sucli possible claim; of all which he will judge, before the sale and arrangements are finally closed.

1 f, under all these circumstances, a sale, manifestly^ to the interest of the infants, can be made, this court thinks it will be proper to decree the same, taking care that the proceeds thereof shall be properly invested and secured for the use of the cestuique trusts, according to their rights as they now appear, or may hereafter appear, or of any future cestuique trust, who may be entitled under the deed aforesaid, with liberty to the parties, from time to time, to apply to the court for further directions.

The court is further of opinion, that unless the chancellor shall be satisfied, that it is necessary to appoint another guardian ad litem, or to take other steps to satisfy himself, that the interest of the estate as aforesaid, or should he ultimately estate as aforesaid, or should be ultimately be so satisfied, it will be competent for him, instead of directing a sale by his decree as aforesaid, to confirm that already made to Nathan Lofitus, under the terms and conditions aforesaid, provided he is willing to abide thereby, and James Loving, and Nancy his wife, are also1 willing to unite in the conveyance, and to invest and secure the proceeds thereof, as aforesaid, in the same manner, as if such sale had originally been made, in pursuance of a decree of the court.

The decree of the superior court of chancery is, therefore, reversed, but without costs; and the cause is remanded to that court, to be further proceeded in according to the principles above declared.