Walker v. Hallett

ORMOND, J. — The three first assignments of error, are well taken, as determined in the case of Cullum v. Casey & Co. at the present term; and for that cause, the decree must be reversed, and the cause remanded for further proceedings; and for the future government of the court, we think it proper to express an opinion on all the points presented by the assignments of error. The fourth, fifth and tenth assignments of error, which question the regularity of the supplemental bill filed in the cause, will be considered together, A supplemental bill, properly so called, is a bilí brought for any new matter which has arisen since the filing of the original bill, and before it is brought to a hearing; and in general, the defendants to the original bill should be parties to it: (Jones v. Jones; 3 Atk. 216.) It is filed- by leave of the court; and it is objected in this case, that such leave was not obtained: But as this permission is given as a matter o $ eoersey in a proper case, on an ex parís application, it is doubtful whether an objection would be entertained to it, for this cause. It certainly would not at the hearing, if not objected to before; and of course not by a party in contempt, after a final decree; See Eager v. Price, 2 Paige Chan. 333, where this objection was not sustained. For matter which existed at the time of filing the original bill, and omitted from ignorance or mistake, leave will in general, be given, on application to amend the bill; and such amendment when made, forms a part of the original bill. Such, it is insisted, is the predicament of this case; and doubtless-, the object might have been accomplished1 by amending the original bill; but it appears from the case of McGown and others v. Yeates and — 387 — others, (6 Johns. Chan. 450) that the object may also be attained by a supplemental bill,- and that in such a case, when the design was to bring prior incumbrances before the court, the original defendant need not be parties to it; Ensworth v. Lambert and others, 4 Johns. Chan. 605. The objection therefore, taken to the supplemental bill, for these reasons, cannot be sustained. It is also insisted, that it is uncertain against whom the supplemental bill is filed; whether against John B. Norris, or the Branch Bank at Mobile. As a corporation answers under their common seal, the complainant would be under peculiar disadvantages, if he could not compel an answer upon oath; and therefore, an exception is allowed in such cases, which is thus stated by Lord Redesdaie: “There seems to be an exception in favor of a corporation, for as a corporation can answer no otherwise than under their common seal, and therefore, though they may answer falsely, there is no remedy against them for perjury. It has been usual, where a discovery of entries in the books of a corporation, or of an act done by the corporation, has been necessary to make their secretary, or book-keeper, or other officer, a party.” See 1 Vernon 117: 3 Peere William 310: 1 Bro. C. Rep. 469. There would therefore, be no impropriety in calling on the President of the Bank, as its official organ, and acquainted with its concerns, to answer the bill, although the necessity for it in this case is not'perceived. The question here, is whether the Bank is a party. A party to a suit in chancery, is one, against whom process is prayed. The prayer of the bill is, that the Bank be made a party to the bill, by serving a copy of the same on John B. Norris, the President thereof. This, although not very formal, may be considered as sufficiently indicating the intention, to make the Bank a party. But the subpoena which issued, is not directed to the Bank, but to “John B. Norris, President of the Branch of the Bank of the State of Alabama at Mobile,” to answer a bill of complaint, exhibited against him and others, it is most certain, that this was not process against the Bank; and — 388 — as no other was issued, there was no warrant for the decree pro confesso against the Bank, for want of an answer. If the process had issued against the bank, service on the president would have been sufficient notice to the bank, to have justified a decree pro confesso for a failure to answer; or to have warranted the court in taking steps to compel an answer from the bank, if one had been desired. The sixth, seventh, eighth, ninth, and eleventh assignments of error will be considered together: A court of chancery, is peculiarly the guardian of all infants, brought before it, and will exert its utmost power to prevent any thing from being done to their prejudice; when the infant is of such an age as to be able to exercise his judgment, and have a choice, unless there be some sufficient reason for it, such as absence from the State, or great distance from the court, he should be present in court and consulted on so important a matter, as the choice of a guardian to conduct his suit. Our statute gives to minors over fourteen years, the right to choose their own guardian, and confers the power to appoint a guardian, on the judge of the county court, only in the event they fail to exercise this right; we do not say that in chancery, the infant’s right of choice is absolute; but that his nomination should be approved, unless there be some good reason for rejecting it. The English practice appears to be, to require the personal presence of the infant, in court, or by his praying a commission, to have a guardian assigned him. (Cooper’s Equity 108, 109, 2 Fonblanque 237.) So when the infant is a non-resident, a commission must go. (11 Vesey, Jr. 563.) But the practice does not seem to be certain, for in Thompson v. Jones, 8th Vesey, Jr. 141, service of process on the father-in-law, was held to be service on the infant. We are of opinion that it is not absolutely necessary, that the infant should be brought personally before the court, to enable the court to appoint a guardian ad liltm\ such has not been our practice hitherto. In the case of non-residents it would be impossible; íí) tbe case of extreme infancy, useless; and in cases where the — 389 — infant is not in the vicinity of the court, though within the State, expensive and troublesome; and would frequently be a great hardship on the infant without any corresponding benefit. Nor do we think that in the case of non-resident infants, there is, any necessity as is contended, to send a commission abroad. The only eflfect of such a course would be, to enable the infant to make a nomination, in cases where he was of sufficient age, and the guardian must at last be appointed by the court. There is no proof in the record, that the heirs of Keenan are minors. It is certainly the most regular and, we think, the proper course, for the court to require proof of the fact, when the alledged minor is a non-resident. It is the imperative duty of the court in all cases, to make the best selection in its power, of a proper person as guardian, ad litem, and especially when there is a real contest, as must always be the case when there is a sale prayed under a mortgage. The appointment of the same person master, and guardian ad~ litem, |Was manifestly improper; the two offices were incompatible. It was the duty of the guardian to attend the master while taking the account, and make the report; to scrutinize his acts, and in all cases of doubt, to take an exception. It would be too much to expect the master to except to his own report; and admitting that he would always act according to his best judgment, there would be no security against unintentional error. In the case of the heirs of Dunning v. Stanton, 9th Porter, 515, a doubt was expressed, whether an order of publication under our chancery practice was necessary when the non resident defendants are infants; but the point did not arise in judgment, and was not decided. We are now upon further reflection, satisfied that such a course is proper. The statute is general, requiring advertisements in case of non-residents, without exception; and although it is true that an infant cannot be said to be in default, yet the reason for requiring it in his case, is nearly the same as in that of an adult. Although not arrived at majority, he might be of sufficient discretion, to understand his inter — 390 — ests; and if of tender years, such notice might reach his guardian, or relations, and enable them to take steps to defend the suit. We are therefore of opinion that it cannot be dispensed with. It results from what has been previously stated, of the propriety of consulting an infant as to the choice of his guardian, that the court erred in appointing a guardian ad litem, before publication as to the non resident infants, and service of process on the one residing in the State. We are, therefore, of opinion that it should appear that proof was made of the infancy of the alleged minor, if a non-resident; that it is not necessary in all cases, that the minor should be personally present, when a guardian ad litem is appointed; but that after the age of fourteen years, all resident minors should be consulted, as to the person to be appointed guardian ad litem, if not attended with too much trouble and expense, as to which the court will exercise a sound discretion; that it is proper that process should be served on all resident infants; which, when they are of tender years, may be executed on their guardians, or some of their near relations or friends; that publication is necessary and proper, in case ot non-resident infants; and that after proof of such publication, a guardian ad litem, may be appointed; that such appointment should not be made in any case, before service of process, or proof of publication; and that it is improper to appoint the same person master in chancery and guardian ad litem. In reference to the appointment of guardian ad litem, it is the duty of the court to select such persons if possible, as are interested in the welfare of the infant, and at all events of sufficient capacity to understand, and manage his affairs. We feel no hesitation in saying, that in cases like the present, the chancellor has power to make a reasonable compensation to the guardian ad litem for his trouble and expense, to be taxed as other costs in the suit, so as to insure, if possible, a faithful attention to the interests of the infant. It is objected to the reference in this case to the master, that the chancellor referred to him the proof of the material facts staled in the bill; by which is understood, the proof of the execu — 391 — tion of the bond and mortgage, as well as to state an account between the parties. It is to be observed, that the record shows that the original mortgage and notes were produced and proved to the court; after this, a reference to the master to take the same proof, could not vitiate. He was also required to report whether the premises were sufficient to pay the debt due on the mortgage, and whether it could be sold to most advantage entire, or in separate lots. The master, after reporting the amount due on the mortgage, proceeds to say, “ that it would be for the interest of the defendants to sell the premises in separate lots, if the premises can be conveniently divided.” This report does not answer the principal matter referred to the master, and is too meagre and destitute of facts, to be the foundation of a decree, especially where infants are concerned. Chancellor Kent, in the case of Mills v. Dennis, 3d Johns. Chan. 367, says: “ The proper inquiry in such cases will be, whether a sale of the whole, or only of a part, and what part of the premises, will be most beneficial; and this has now become the usual inquiry, even where infants are not concerned, as appears from the case of Brinckerhoff v. Thalimer, 2 John. Ch. Rep. 486. The master must not only make a special report on that point, in every case where infants are defendants, but the plaintiff must also prove his debt, before the master, in the same manner as if nothing had been admitted by the answer; and the master must report such proof, and also the computed amount of the principal and interest due; and to what, and of which part of the premises, (if any part short of the whole) a sale would be sufficient to raise the debt; and at the same time be most beneficial to the infant.” See also to the same effect, Ontario Bank v. Strong, 2d Paige, 301. The master in the report made in this case, admits that it is for the interests of the defendants to sell the estate in separate' lots, if it can be conveniently divided; but he leaves us in doubt whether this division can be made. He should have prosecuted his Inquiries further, and ascertained whether such divisions could he made, and if so, which portion it was most for the — 392 — interest of the defendants to sell; the value of such parcel, and also the proofs on which this opinion rested. This was particularly proper in this case, as the principal part of the debt was not due, when the decree was rendered, and consecutive sales were directed to be made, as the instalments fell due. It might have been, and probablj' was, a matter of great moment to the defendants, which part of the estate if it could be divided, should be first sold; and especially that no more should be sold than was absolutely necessary. The report of the master, therefore, for these reasons, should not have been confirmed; but the master should have been directed to report more fully and at length, upon the matter referred to him and such a statement of the evidence, as would enable the court to judge of the justness of his findings, if questioned by either party in conformity with the opinion here expressed. See as to this point, the case of Johnston v. Richardson, 1 Molloy 54; 13th Con. Eng. Chan. 31. The final decree is erroneous, in leaving it optional with the master, to sell a part or the whole of the property at his discretion. As has been already stated, the fact whether it was for the interest of the defendants, that the estate should be divided should have been ascertained by the report of the master. It is true, that there are cases in which a discretion must be confided to the master, in regard to the sale; and which if abused, can be remedied when the sale is reported for confirmation, if so directed by the decree. But no farther discretion should be given, than is absolutely necessary and for the interest of the parlies. It is also objected, that the final decree is enormous, in not requiring the money raised by the sale to be paid into court. In the case of Massena v. Bartlett, 8th Porter, 277, we sustained a decree similar in that respect, to the present. It is true the effect will be, that the money may be paid over to the plaintiff. But if there was any abuse of the power confided to the masters, or any unfair practice, which would make it proper that a re-sale should be ordered, notice of the intended application for that purpose, oculd be given, and the payment of the money arrested. — 393 — It is further objected that the decree is erroneous in directing successive sales of the property, as the instalments fall due, without applying to the court for an order to sell. It is very certain that a mortgage may be foreclosed and a sale directed, when the first instalment of a debt falls due, and if the premises could not be divided, and the whole was from necessity sold, as it would be improper to return the money to the mortgagor, it would perhaps be the proper course for the court to direct it to be paid over to the mortgagee in extinction of the mortgage; unless some course could be suggested, consistent with the Safety of the mortgagee, and more beneficial to the mortgagor. But no decree should be rendered, fora debt not due, unless it were allowable in the case supposed, of the property mortgaged not being susceptible of division; which does not appear to be the case here. The decree should have been for the amount due, and the mortgaged property directed to stand as a security for the debt not due. Thus, in the case of Levert v. Redwood, 9th Porter, 97, by the decree rendered by this court, the mortgaged property was decreed to be subject to the payment of the debt not due; and that if not paid when it became due; that the complainant might go before the master, and obtain a report of the sum due; and that thereupon the chancellor should order a sale of the residue of the mortgaged premises, or so much thereof, as shall be sufficient to satisfy the debt and interest thereon. This is the correct decree in cases of that character, as is this case. For the reasons given, the decree in this case must be reversed, and the case is remanded for further proceedings in conformity with the opinion here expressed,