Tucker v. Bean

Walton, J. A bill in equity should never be taken pro confesso against an infant defendant. No laches can be imputed to an infant, nor can the guardian ad litem, by any consent, bind his rights. No valid decree, says Chancellor Kent, can be awarded against him merely by default, or upon such consent. The plaintiff in every such case ought to prove his demand, either in court or before a master. Mills v. Dennis, 3 Johns. C. R., 367. In equity suits the usual answer of a guardian ad litem of an infant is that, the infant knows nothing of the matter, leaving the plaintiff to prove his case if he can, and throwing the infant upon the protection of the court. Such is the answer of the guardian in this case. But such an answer was pointedly condemned in Lane v. Hardwicke, 9 Beavan, 148; and Chancellor Kent held in the case of Mills v. Dennis, above cited, that a decree upon such an answer would not bind the infant; that the plaintiff should prove his case. And again: This court has recently decided in a case not yet reported, that infants must be made parties to bills in equity affecting their title to real estate; that making their guardian a party is not sufficient; that while it is true that the infant can only answer by guardian, still, the suit must be directly against the infant. Wakefield v. Marr, 65 Maine, 341. In this ease there is no proof in support of the plaintiff’s claim, other than the bill itself. Nor is the infant defendant- made a party to the suit. It seems to have been supposed that making [354] her guardian a party was sufficient. No counsel appears in defense of the suit. Nor is there any other answer by the guardian than non sum informatus. The court cannot consent to make a decree barring the infant of her rights in her father’s estate upon such a presentation of the case. Bill dismissed without cost. Appleton, C. J., Dickerson, Barrows, Daneorth and Libbey, JJ., concurred.