Welch v. Agar

Bleckley, Chief Justice. 1. Mrs, Hoge was a minor, and although service was made upon her, she did not appear or plead, nor did her husband accept the appointment of guardian ad litem, but expressly declined the same. The court should not have proceeded in spite of his declination, for the precise opposite is the spirit of our law. It contemplates an express acceptance, in order to make the infant a party with perfect regularity. Code, §3263(a). If Mrs. Hoge had voluntarily appeared after she attained majority, that would have sufficed, as it seems she had arrived at age when the trial on the petition took place. But service upon her during her minority would not compel her appearance after arriving at age. The petition should be amended, alleging that she is no longer a minor, and copy of the amendment should be served upon her. Then she would be bound whether she appeared or not, if in fact she be now of full age. The same result might be accomplished by an order reciting her arrival at age, and service upon her of such order. 2. As the formal legal title to the whole premises is perhaps outstanding in a trustee, it would also be better that he be made a party. The order appointing him calls him a naked trustee, but it goes on and clothes him with all the rights and powers conferred by the deed of trust upon the original trustee; and the original trustee took the power to sell and reinvest m conjunction with Mrs. Welch. It may be that this power is no longer exercisible, if all the minors interested in the 587 property have attained their majority. We do not rule that he is a necessary party, but it would be judicious to bring him before the court, if it be designed-to make the partition absolutely conclusive upon the title both legal and equitable. 3. With respect to the right of a creditor who holds an absolute deed as security for his debt to have partition, there is some difficulty, because his title is defeasible, and because his bond is outstanding to reconvey; not an estate in severalty, but an estate in common, the same sort of estate which he acquired from his debtor as security. Following analogies, we would say 'that he can have partition, certainly so with the concurrence of his debtor, the holder of the bond for titles; and without such concurrence,if there be any good reason shown why he ought to have his estate in common changed to one in severalty. We find it ruled that mortgagees holding the legal title may under some circumstances have partition. Colton v. Smith, 11 Pick. 311; Rich v. Lord, 18 Pick. 322; Barbour on Parties, 423; Freeman on Coten. §§451, 452. See, however, 1 Jones on Mort. §705. To grant partition at the instance of a creditor holding an absolute deed, as in the present case, would relieve him from reeonveying the kind of estate which he holds and which he has engaged by his bond to restore to his debtor upon payment of the debt. To work this result in opposition to the will of the debtor, ought to require a very strong reason, inasmuch as the statute gives another remedy for realizing on such a security, namely, the execution of a deed and levy and sale of the property after obtaining judgment on the debt. Code, §1970. In all applications for partition, the court has a discretion to deny the writ where a sufficient reason appears (Code, §4006), and that the applicant holds a deed for security only is a very potent reason for denying the 588 petition, where it is not shown that some special cause exists for not using at once the appropriate statutory-remedy expressly provided by the legislature in behalf of such a creditor. In this case, no such cause appears, and we think the court erred in ordering the writ to issue. Judgment reversed.