Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1858-12-14

sees deiiveredat Nashville, az DeoembeE
Term, 1857.
DAyidsOns BOEden and Others.
Ihs C'mplsinaRts seek by their bill to be dis
Spagsd IRON their purchase Of tract Of land lying
IN Coffee county, sold under a proceeding in CBap-
Gerry, as the property Of the heirs at law Of John
BoWden, deceased, on the ground that by reason of
the irFegulariiy Of the proceedings, the sale vas
VOID aud no title can be acquired BY Them. The
Chaneeior dismissed the bill, aud the COmpIainanis
I appealed
The facts are these. John BoWden died in AIissip-
p the place Of his domcile in 1896 intestate lsay
| ing widow and eight children He was the OEnar
al ms death, Of three tracts Of land in Coffee county
IN TINS State, which descended to his heirs at law
IN 1000 en "a PaTts petition was filed in the Chan
Gerry Court at Manchester, in the names Of the vid-
OH ana eight children, six Of the eight being reDre
sented IN the petition then minors and as suing
| oy tneir mother, who as alleged was their regular
guardian IN Mississippi andoBe Of the other two gas
lhen fs7e eooet and all Of them we're residents Of
dlsasspPi. The petition sought to have the lands
sOld on the ground as stated in the petition that
said lands are situated that they cannot Be diyid
ed between them. lths petiiioners) and that it is
mamteEtiy 10 their interest that the same be sold
In the petition the widow relnquishes her right TO
dover IN said lands, and asks that an equivolent in
money be made to her out Of the proceeds of the
sale. At the same term Of the Court at which the
petition was presented the Chancellor referred it 10
the Master 10 report astasT upon the matter Of the
Petition The Master according gy reported that from
the evidence Of the two Witnesses which he files
With bis report said Laads eQaaot Be diUisd among
the heirs 10 adDaRfqge." On looking TO the proof
upon which the Master based his report it
turns out that only Of the witnesses referred to-
expresses an opinion upon the subject, and his
statement is purely matter of opiaEH, without any
fact or reason shown for it. It's simply Ibis: ~
do not tHs they (the lsnds) Be d,1idsd 5str0ssn
the PGreS 20 any aig4at1qs The other witnf a er-
q nm IL frf Uss
Is confined TO the average value Of the lands per
acre Upon the presentatiJR Of this report withOut
any thing more the Chancellor proceeded 70 decree
sale Of the lands. On VT at grounds the decree is
based is not stated There is not an in imstion in
the decree, that in the judgment of lhe Chancellor
the lands could not be divided or that it would Be
for the interest Of tie heirs to have a sale The de-
cree in genetai TERMS orders the sale without any
cause being stated Acd under this decree the sale
took place, which, at 3 subsequent term, but prcr
to the filing Of this bill was confirmed
This involves no debatabls question touching
the jurisdiction Of Court Of Chancery to convert
the real estate Of infants, either in view Of our own
statutory regulations upon that subject, or he in.
herent jurisdiction Of Court Of Equity Accord |
ing TO s the suthOrities, the sale was simply void
The proceedings pupOrt to be under the act Of 1927
oh o. butin no enc respect either regards form
or substance do they eouorm to the requirements Of
that act There is not title Of proof IN he re-
cord to establish the allegation Of the position nor
Is II even assumed in the decree that the lands were
80 situated that partition thereof Rould not be I
made In the mode pointed out BY law" or, that they
we're Of such description that it would be mani
testify for the advantage Of the heirs that the same
be sold and by the express terms Of the act 'sGt-
isfaetoTy proof Of ore other Of these grounds is
requisite TO elothe the Court with jurisdiction un-
der the statute. By the emphatic expression /
'satlsaetoTy proof" is meant such proof IS demon
sirates, or clearly and certainly establishes the
truth Of the fact the point in issue The opinion
Of the witness uuaccompsuied by facts or Iess rs /
clearly sustaining the correctness OF such opinion
was entitled TO no consideration it was not even /
admissible, upon familiar principle Of eYidance /
and ought not to have been received much less /
ought q to have been made the sole foundation Of
the decree. And the report Of the master based /
upon such incompetent testimony goes for nothing
The consequence is that the sale was utterly void
1t s further insisted, that the validity Of the sale
is affected by the informlliiy Of the proceedings.
The objections urged are, that the proceeding /
should have been by bill in regular form, and that
the infant heirs ought TO have been made defen> 1
danfs.
These objections, we think, are we'll founded. /
The statute IN terms preseribes thai the mode OF pro-
eeediDg shall be by bill in equity aud the suit is /
to 'bs conducted in the same manner az other
SUI in equity"
In all cases in equity, where it is sought to affect
the interest of infants, and more especially their To-
terests in real estate, by attempt to change il
application be by stranger or By adult c0-tensnts
or others claiming right to do the infants ought
to be made defendants And this, for obvious rea-
sons Infants ere regarded IS incapable Of asserting
or protecting their own rights Of forming judg,
ment as to what would really be for their benefit
or Of the proprety necessity Of applying for pro-
lection or redress TO the tribunals Of justice Il
often happens that where infants are joint owners
with adult parties Of real properly, the interests Of
the latter in direct opposition 20 the true err
Of the former, and that what might be beneficial
to the one would not be 30 to the other.
The attitude Of defendants in q sui: in equity, is
in various respects more ady analogous aud safe for
infants than thst Of piaintifs. ANY one as next
friend msy volunteer his services TO sue for them as
aud sometimes Il has happened that the
persons assuming this relation have been prompted
10 do 50 by very unWorthy motives Bot as deeBdanls
it is the solemn duty of the Court select suitable
person as guardian dHsn, TO defsBd the rights /
Of the infants, whose duty II is 10 make the proper
defence, snd who iE responsible, Il seems for the
prOpriety and conduct Of such defen Page,
CD r. 8O4 1. Denl. eh. Pr 204 An infant ae~
fendant is not bound By the decree against him in
the same manner as On infant plaintiff in general /
is. / Danl ch Pr. 81, and Note.
Neither is an infant defendant bound BY the an
sWer or admission Of the guardian cd Item. ID
pa 2I7. And the facts necessary 10 entitle the /
plaintiff to relief must be proved against the infant
bv evidence derived from other sources than the an
sWer or admission made BY the person conducting /
the suit for him. ID. 2IS. Johns, Ch. R. 367.
In regard to the effect ofthese objeciions, and the
latter mainly, the joining the infants plaintiffs in
stead Of making them defendants, We think il con 4
stitutss error for which The decree might be
ed on appeal or wit Of error Perhaps It would be
regarded as error apparent on the face Of the de-
cree But We are not prepared to say that il ought
to be permitted nValidate the title Of bona Rds
purchaser. ether objections aside.
The decree win be reversed, the cOmplaiuants be I
disch rged from the purchase their obligations for
the purchase money surrendered and cancelled and /
the amount Of the purchase money paid down Wia 4
be refunded to them with interest thereon.
correct copy; MCKmEEY.
J. P, CLARz, Clerk.