Ruby v. Strother

Scott, J., delivered the opinion of the Court. This cause was originally instituted and determined under the act regulating proceedings in chancery, approved 19th February, 1825. That act directed that courtshaving chancery jurisdiction should proceed according to the rules, usage and practice in courts of equity. By this provision, the Legislature contemplated a resort to the rules and practice of the English courts of chancery, for, as our system of jurisprudence is borrowed from England, when reference is made to chancery practice, it must be presumed that the statute contemplated the system that prevailed in that kingdom. The question, then, arises whether, in those courts, an infant was entitled to a day after his coming of age to show cause against a decree affecting his inheritance rendered against him during his minority. An examination of the authorities, ancient and modern, leave no doubt that such a right existed, and this right has been recognized in many of the American courts. 1 Har. Chan., 425-6-7; Price vs. Carver, 14 Eng. Con. Chan. Rep., 157, part second; Mills vs. Dennis, 3 J. Chan., 367; Pope vs. LeMaster, 5 Lit., 77; Beeler vs. Bullett, 4 Bibb, 11; Wilkinson’ adm’r vs. Oliver’s rep’s, 4 Hen. & Mun., 450; Wilkinson vs. Wilkinson, 1 Desau. 201. The statute of 1825, which, in some instances, gave the county courts concurrent jurisdiction with the circuit courts in decreeing the specific [423] performance of contracts for the conveyance of real estate, allowed an infant five years after his disability was removed to appear and file his petition or bill of review to set aside a decree rendered against him in such suits. An argument was based upon the fact that, as by our law the parol is not allowed to demur in common law proceedings, so an infant is not entitled now to six months after his coming of age to show cause against a decree, because the giving him six months for that purpose was in analogy to allowing the parol to demur in suits affecting his inheritance.— This seems to be the view of the subject taken at first by the English court of chancery, in the case of Powys vs. Mansfield, 9 Con. Eng. Ch., 446, after the rule that the parol shall demur had been abolished by the statutes of 11 Geo., 4, and 4 Will., 4. But in the subsequent case of Price vs. Carver, 14 Con. Eng. Chan. Rep., part second, 160, this doctrine is denied, and a number of cases are cited to show that, in chancery proceedings, a day to show cause against a decree was given to infants in many cases in which the parol would not demur at law. That when the parol demurred in chancery proceedings, nothing was done to affect the infant; but that when a day is given, the decree is complete, but the infant has a day given to show cause against it, and if he does not show good cause within the time allowed, he is bound. If this be so, we do not see the force of the argument drawn from the practice in our courts which by the decree vests the title in the party entitled to it. In the English practice, a day is given to the infant in this form, viz •' “And this decree is to be binding on the defendants, unless, on being servedjwith subpoena, they shall, within six months after they shall attain the age of twenty-one, show unto this court good cause to the contrary.” 2 Har. Chan*, 442; 14 Con. Eng. Chan., second part, 161, Price vs. Carver. Now, the difficulty in this case grows out of the omission in the decree of a requisition on the complainant to serve the infants with process within six months from their attaining the age of twenty-one years to show cause against it. How is this decree to be construed ? Are we to take it literally and compel the infants to take the initiative, in setting it aside, or to construe the decree as though it had been entered in due form, and throw the burden of bringing the infants into court on the complainant ? If a decree is formally entered and a complainant omits to serve process within the six months on the infant, what is the effect of such neglect? Does the decree thereby become null as to him as the condition has not been complied with, or is he at liberty after that time to come in and show error ? There is no warrant in the usage and prac [424] tice'of the courts of chancery in England for giving a literal construction to the decree entered in this cause. It must either be regarded as regular or as a decree giving no time to the infants. In that event, it is not a decree in conformity to the practice of courts of equity, and is therefore erroneous. Kelsall vs. Kelsall, 8 Eng. Con. Chan. Rep., 59. It is held that when an infant conceives himself aggrieved by a decree, he is not under the necessity -to stay till he comes of age before he seeks redress, but may apply for that purpose as soon as he thinks fit; neither is he bound to proceed by way rehearing or bill of review, but may impeach the former decree by an original bill, in which it will be enough for him to say the decree was obtained by fraud and collusion, or that no day was given to him to show cause against it. Richmond vs. Taylor, 1 P. Wms., 736; 2 Har. Chan., 427. The evidence on which this decree is founded is not preserved, as was required by the statute in force when it was pronounced. It is moreover a bill by an infant for a specific performance of a contract to convey real estate, and it is a general principle that an infant cannot sustain a suit for the specific performance of a contract, because the remedy is not mutual. Flight vs. Bollard, 3 Con. Eng. Chan., 675. Whether the circumstances of this case take it out of the operation of the general rule, we will not now determine. It has been thought incumbent on us to say this much relative to this cause. In considering it, the difficulties above suggested have been encountered, and they have been thrown out that they may be examined by the counsel. We are of opinion that this cause is not before us in a shape in which the points made can be decided. The procedure adopted by the appellants is not an appropriate one. They come in voluntarily by petition to show cause against a decree. The cause shown is a bare statement of facts, unsupported by affidavit, and no notice whatever of this step is given to those who are interested in opposing it. As the parties, appellees, were all out of court, proceedings against them without notice could not be had without violating the first principles of justice. The decree will be, as the proceedings are deemed irregular, that they all be dismissed at the costs of the appellants, the other Judges concurring.