Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-03-09
Naipn aud Jispatth
SATURDAY. MARCH .. Isez.
Largest Circulation ii City and State.
DECISIONS OF THE SUPREME
COURT.
Huqh MeGauoeL b. Y. q. "a
Reported for the Union q Dispatch by Lindsey
Reid

| 4. CHANCERY, JURISDICTION, fSFANTs.-It /
| more In harmony with cur practice 10 make Al
| infant defendant than a complainant in bill
! Of chaneery; yet there will not be sueh a wan
OF jurisdiction Of the person. where the infant /
| made complainant, as TO render the decree FOii
( o. against a bona fde purchaser under IT, G %.
/ z. SALE UNDER DECREE OF COURT.-Where il
decree Of land particular order is indicated
1 a departure from such order by the commissioner
| not excepted to before Confirmation will no
I render such sale Invalid as TO bona tde purchas
1 err, IN the absence OF all fraud and combination
] This is a bill filed in the Chancery Cour
a. Nashville, to set aside former decree o.
! that court made pursuant thereto, null and
void, and to restore the parties 20 theil
original rights. II is difficult accurately
TO define the technical character of the bill
Strictly it il not bill of review, nor is 4
IN its form aad ALLEGATIONS Technically a
bill to impeach a decree obtained by fraud
or imposition. As bill Of review it does
not seek relief alone on account OF errors
aPparenti in the decree, or upon new matter
arising in time; and as an original bill ia
impeach decree gained by fraud and i'm
position, il fails to charge either fraud or
imposition. rs character is compounded
Partaking both Of the nature of a bill ol
review and an original bill to set aside a
former decree Improperly obtained but
without fraud, collusion, or surprise, against
an infant, and as such it may, perhaps, be
maintainable under such facts as impeach
the validity OF the former decree, or other
wise render it void. Story's Eq. Pl., sec.
AT. ] Danl. Ch. Pl. 206.
The bill charges that the complainant,
Hugh +. McGavock, who sues by his next
friend, John c. Bowman, is a minor, and
only son and heir at law Of Hugh Nc
Gavock, deceased who died intestate in
1858, leaving his widow, Mary McGayock,
and complainant, the only persons sur
viving him who were interested in the set
Element and distribution of the estate after
the payment of debts.
Francis McGavock. administrator on the
estate, and in the same year. 1853, Jacob
McGavock, Francis McGavock, administra-
tor, etc, the widow, Mary McGavock. and
complainant, then an infant, only nine
years old, by his uncle and next friend
Francis McGavock, filed their bill in the
Chancery Court of Davidson county, al
leging among other things, the death and
intestacy Of Hugh McGavock, the qualifi-
cation of his administrator, the sale of the
personal property, as well as the sale of
several negroes under deed of trust, exc
euted by the intestate in his life time, and
stating the Indebtedness of the estate at
$25,000
ltfurther appears that, the intestate in
his lifetime, on the 10th Of January, 1858.
conveyed in trust to Jacob McGavoek, one
Of the complainants, two tracts of land.
near the city of Nashville, one containing
two hundred acres, and the other one hun
dred and three acres, TO secure various debts
amounting with interest to over $l5. 900
by the terms Of the deed, the trustee was
empowered to sell the lands conveyed.
either at public or private sale, for cash, or
or credit, at such time as the exigencies
of the trust might require.
Prior to this time, on the 23d of Nav.
1914, it appears that the intestate, Hugh
had conveyed the same lands in
trust to John M. Lea, to secure the pay
ment Of note of $500, held by him as
executor and due and payable March ],
1876, with power in the trustee TO sell for
cash at any time after the maturity Of the
note.
The lands, as charged in the bill, if sold
under the trusts, would have been sold
subject to redemption, and as it is assumed
in the bill, in the embarrassed condition of
the estate It would be manifestly 10 the in
terest Of the parties, and especially the in
FAINT complainant, to have them sold free
from the equity of redemption, and in
particular order.
At the November term, 1853, an inter
locutory order was passed by the Chsncel-
lor, directing the master TO hear proof and
hn md e Il
amount Of personal assets, and whether il
would be necessary to resort to the real
estate to pay debts, and especially whether
il was manifestly to the Interest of the
minor complainant that the lands be sold
in the order indicated in the bill. and with
out the equity Of redemption
In obedience 70 this decree, the master
heard proof and reported 10 the same term
of the court at which the decree was pro-
showing the indebtedness of the
estate, the personal assets, and the necessity
of resorting to the real estate to paw debts.
and that il would be manifestly to the in,
terest Of the minor that the lands be sold
without the equity Of redemption. and in
the order indicated in the bill. That is to
say: the lO3 acre tract 6rsf-then so much
Of the home tract as lies iarthest from Nash.
vile, 50 as not to reduce il below seventy
five acres-and idstiy so much Of the small
tract nearest the city, which is laid off into
lots, as may be necessary, etc"
This report was confirmed, and Jacob
AlcGayock, the trustee, as commissioner,
directed to sell the lands in the order speci-
fed in the Masters report Afterwards, at
the May term, 1854, Francis McGavock.
with the assent of all the parties, was sub
7ututed as commissioner in the place Of
Jacob McGavock, who proceeded to sell
portion Of the lands, but, as it is salleged. not
In the order specified in the decree. He
returned report Of the sale, accompanied
by a plat OF the lands sold from which il
appeaTs, as stated in the hill, that only
thirty acres of the l03 acre tract, and about
eighty-iour acres Of the home tract were
sold.
Al the June term, 1864, the commissions
FRS report of sale without exceptions was
confirmed, and decree pronounced direct
ing the commissioner TO make titles 10 the /
purchasers Deeds were accordingly exc
euted, and the several purchasers admitted |
10 the possession Of the lands respectively |
bought 10y each. All the purchasers are
made parties defendants, and claim title to |
.he lands as bona dde purchasers under the !
iecreS OF the Chancellor, and the commits
ioner's deeds made pursuant thereto.
The bill substantially alleges the forego
ng facts, was demurred 10, and the de- |
llnrrer sustained and the bin dismissed, |
rom which an appeal in error is prosecuted /
a this court.
Treating the bill in the most favorable !
light In which il can be viewed as an origi- 4
lal bill 10 impeach a decree Improperly /
,blained against an infant and charging his !
,siate, we are called upon 10 determine I
loW far it will protect bona fde purchasers. 4
For, view II as We may, it isnoi a mere /
,cyersal of the decree that is sought, but 4
hat the sales under it NAV be set aside, /
md the parties reinstated 10 their original 1
rights
The law is well settled that an original !
nill will be In favor OF an infant, to inn !
peach a deoree obtained by fraud and i'm !
position, for these win infect judgments at /
law and DEGREES Of all courts, bat they an
nul the whole in the consideration Of Courts |
o. Equity. Story Eq. Pl 5226. So also |
Il is said bin may be maintained for error
TO lmpeach decree when il is not gained /
BY iraud, collusion or surprise, and the /
infant h not obliged for that purpose to |
wait until he has attained his majority 1
. 3 ~" i"