Coleman v. Virginia Stave & Heading Co.

Buchanan, J., (after making the foregoing statement of the case) delivered the opinion of the court. The first assignment of error is that the circuit court erred in holding that the decree confirming the sale of the timber was voidable only and not void. It is conceded by the counsel of the appellees that the proceedings in the original cause were not regular, and that several errors appear upon the face of the record; but it is insisted that these were errors in the practice and procedure, which did not affect the jurisdiction of the court; — 69 — that if they were errors prejudicial to the appellant, they would render the decree reversible, but not void for want of jurisdiction. . Before considering the question whether or not the court acquired jurisdiction under either section 2609 or section 2616 to make sale of the timber of the infants, it may be best to dispose of the contention of the appellees, that the bill in the original suit was filed by Mrs. Vaiden both as widow of S. E. Vaiden and as guardian of his infant children, an,d that under section 2436-a of the Code she had the right to file the bill to have the timber sold, her dower rights in the proceeds thereof commuted and the residue distributed among the heirs at law. While the pleader does not seem to have framed that bill with reference to, or at least in accordance with, the provisions of any particular statute, it is clear, we think, that the primary object of the bill was not to have the timber sold in order that the widow might have her dower rights commuted. But if that had been its purpose, section 2436-a of the Code did not give her the right to bring such a suit. That section authorizes the sale, in the manner therein provided, of real estate, “when held by a party as tenant by the curtesy or in dower,” whether the remainder therein be vested or contingent or the remaindermen be infants or adults. The bill shows upon its face that neither the timber nor the land upon which it was standing had been assigned to Mrs. Vaiden as dower. Until dower has been assigned to the widow in her husband’s real estate, she does not hold any part of it as “tenant in dower.” She has the right to hold, occupy and enjoy the mansion house and curtilage without charge for rent, repairs, taxes or insurance ; and in the meantime is entitled to demand of the heirs, devisees or alienees, or any of them, one-third part of the issues and profits of the other real estate which descended, was devised or passed to them, of which she is dowable, after — 70 — deducting the costs of necessary repairs, taxes and insurance. Code, sec. 2274. But it is the assignment of dower which creates her a tenant of the land in severalty for life. 1 Minor on Real Property, secs. 334, 335 and 337, and authorities cited. Until that is done she is not a “tenant in dower,” and cannot have her dower interest or any part thereof in her husband’s real estate sold under the provisions of section 243 6-a. If the proceedings by which the sale of the timber was made or confirmed can be sustained, it must be done under the provisions of sections 2609 or 2616 of the Code. In this State a court of equity has no authority under its general* jurisdiction as guardian of infants to sell their real estate whenever it is to the advantage of the infants to do so, whether for reinvestment or for their maintenance and education. See Faulkner v. Davis, 18 Gratt. 651, 98 Am. Dec. 698; Rhea v. Shields, 103 Va. 305, 49 S. E. 70; Rinker, &c., v. Streit, 33 Gratt. 663; Gayle v. Hayes, 79 Va. 542; Whitehead v. Bradley, 87 Va. 676, 680, 13 S. E. 195. By section 2609 of the Code it is provided: “ . . . when it shall be made to appear to the satisfaction of a circuit or corporation court, in chancery, on a bill filed for the purpose by the guardian, that the proper maintenance and education, or other interests of an infant, require that the proceeds of his real estate, beyond the annual income thereof, should be applied to the use of said infant, it shall be lawful for the court to order the sale of his real estate, or such part thereof as may be necessary for the purpose, and, from time to time, make such decrees and orders as may be proper to secure the due application of the proceeds ; and to the extent that the proceeds may be so applied they shall be deemed personal estate, but no further. Every bill filed under this section and the proceedings thereon shall conform to the provisions of chapter one hundred and — 71 — seventeen, so far as those provisions relate to the sale of the real estate of an infant.” . Section.2616 of the Code, among other things, provides, that, “If the guardian of any minor . . . think that the interests of the ward . . . will be promoted by the sale of his estate, or estate in which he is interested with others, infants or adults, ... or if the same be real estate and such guardian . . . think the interest of such ward will be promoted by the sale of the timber, coal, oil, gas and minerals thereof or of any or either of them . . . such guardian . . . may for the purpose of obtaining such sale . . . file a bill in equity in the circuit court of the county or the circuit court or corporation court of a city in which the estate proposed to be sold ... or some part thereof may be, stating plainly all the estate real and personal belonging to such infant . . . and all the facts calculated to show the propriety of the sale ...” When suit is brought under the provisions of section 2609 by the guardian for the sale of his ward’s estate, or a part thereof, for his maintenance and education, that section expressly provides that every bill filed under that section and the proceedings thereon shall conform to chapter 117, so far as those provisions relate to the sale of the real estate of an infant. As section 2616 of the Code is found in chapter 117, the procedure is substantially the same, whether the sale sought to be made or confirmed in the original case was under section 2609 or section 2616. In either case the bill is required (1) to state “plainly all the estate real and personal belonging to the infant,” and (2) all the facts calculated to show the propriety of the sale. Sec. 2616. (3) It must be verified by the oath of the plaintiff. (4) The infant and those who would be his heirs were he dead, and all others interested, must be made parties defendant to the bill. Sec. 2616. (5) To every infant defendant there shall be appointed a guardian ad — 72 — litem,, who as well as the infant (if over fourteen years of age) must answer the bill on oath in proper person (except under certain circumstances which have no application to this case). Sec. 2618. (6) No deposition can be read in the suit unless it be taken in the presence of the guardian ad litem or upon interrogatories agreed on by him. Sec. 2619. (7) Before the court can order a sale it must be clearly shown, independently of any admission in the answers, that the interests of the infant will be promoted thereby, and the court must be of opinion that the rights of no person will be violated by the sale. Sec. 2820. These are some of the provisions by which the lawmaking power, in giving courts of equity jurisdiction to sell the real estate of infants, has sought to guard the power given from abuse, and to protect the interest of those who are unable to act for themselves. . It is insisted that, as the statutes authorizing the sale of lands of persons under disability are highly remedial, it is the rule of decision to give them a liberal construction so as to advance the remedy and support the policy of the legislature. Faulkner v. Davis, 18 Gratt. 651, 669-70, 98 Am. Dec. 698; Vaughan v. Jones, 28 Gratt. 444, 486; Rhea v. Shields, 103 Va. 305, 309, 49 S. E. 70. What was said in those cases had reference rather to the subjects sought to be sold in which infants were interested than to the procedure by which the sales were effected. While this court has frequently held that mere formal defects in the frame of the bill (as in Cooper v. Hepburn, 15 Gratt. 551) or in the answer of the guardian ad litem, or as to the time when the bill is verified by the oath of the complainant (as in the case of Durrett v. Davis, 24 Gratt. 302, 310-12) do not vitiate the proceedings, it has never held, so far as we know, that the mode of procedure provided by statute in such cases must not be substantially complied with. — 73 — In the case of Durrett v. Davis, supra, pp. 316-17, Judge Staples in delivering the opinion of the court, after holding that mere formal defects would not affect the validity of the sale, said: “In considering them (the formal defects) this court has not been unmindful of the importance of a faithful observance of the various statutes enacted for the benefit of the infant and for the protection of the inheritance. The power to sell the estate of those who have no capacity to be heard is a very grave one, and only to be exercised with great caution. Still it is an indispensable power, and is vested in some tribunal in every well regulated State. Sound policy requires that judicial sales shall not be brought into disrepute by the practice of vacating decrees for slight and minute defects in the preparation of causes when the true meaning and spirit of the law has been observed. If the court clearly perceives that the sale when made was an advantageous one, it ought not to regard mere technical informalities which do not substantially affect the validity of the proceedings or the rights or interests of the infant.” The original bill in this case wholly fails “to state plainly,” or to state at all, the estate real and personal belonging to the infant defendants, as required by the statute (sec. 2616). At the time the bill was filed they owned, subject to the dower rights of their mother, six or seven parcels of land (other than the tract named in the bill) aggregating over 1,100 acres, and assessed for taxation at $6,283.50, and as the uncontradicted evidence tends to show, worth from $10,000 to $12,000, and of the annual rental value of $750 or over. They also owned (and there was deposited in bank) their distributive share in their father’s personal estate, which amounted to about $4,500 after the payment of his debts. The bill makes no reference whatever to the said real estate, and the only averments in it as to the property of the infants other than the land upon which — 74 — the timber stood are, that their father left some personal property, but not by any means sufficient to support his family and properly to educate his daughters, and to meet their education “your complainant found it necessary to dispose of some of the property of which said S. E. Vaiden, their father, died seized.” The averments of the bill as to the property then owned by the infants is not only not a substantial compliance with the requirement of the statute, but is not even an attempt to comply with it. Not only was there no averment in the bill as to the property then belonging to the infants, but there was no evidence introduced on that subject. No depositions were taken in the case, and the only thing before the court in the way of evidence were ex parte affidavits of five lumbermen, who stated in substance that the price agreed to be paid by the appellees for the timber was more than it would bring at public sale. These affidavits were not admissible as evidence, for section 2619 of the Code declares, that pot even a deposition shall be read in the suit against the infant, unless it be taken in the presence of the guardian ad litem or upon interrogatories agreed on by him. Smith v. White, 107 Va. 616, 49 S. E. 480. There was nothing in the case, independently of the admissions in the answers (sec. 2620 of the Code) to show that the interests of the infants would be promoted by a sale of the timber, or that a sale thereof was necessary for their proper maintenance and education, or was otherwise for their interest. Without considering the other objections to the proceeding relied on in the petition for appeal, the question we are called upon to decide is whether or not a sale made in a proceeding, under sections 2609 or 2616 of the Code for the sale of real estate of infants, is void or voidable merely, in which the bill not only fails to state but does — 75 — not even attempt to state what property was then owned by the infants, in which that fact does not in any way appear, and in which there is no evidence tending to show that the sale sought to be made would promote the interest of the infants, or that it was necessary for their maintenance and education. It seems to be settled law, that where a new jurisdiction is created by statute and the mode of acquiring and exercising that jurisdiction by the court upon which it is conferred is prescribed by statute, a substantial compliance therewith, at least, is essential, otherwise the proceeding will be a nullity. See note to Crepps v. Durden, 1 Smith’s Lead. Cas. (5th Am. ed.), pp. 832-3, and cases cited; Pulaski Co. v. Stuart, Buchanan & Co., 28 Gratt. 872, and cases cited; Brown on Jurisdiction, sec. 3-a. In Williamson v. Berry, 8 How. 495, 12 L. Ed. 1170, it was held that as the general jurisdiction of a court of chancery did not extend to decreeing a sale of real estate of an infant, such a decree would be invalid when made under an authority given by a special enactment, unless the authority given by the act was pursued. In re Valentine, 72 N. Y. 186, which was a proceeding under the statute for the sale of the real estate of a lunatic, Judge Church said: “The petition in this case was proper and gave the court jurisdiction to proceed and determine the subject matter involved, but it conferred jurisdiction to proceed, not according to the discretion of the court, but in accordance with the statute. The statute provides that on the presenting of such petition it shall be referred. In this case no reference was made, and there was no hearing of the parties interested and no report. We think that this requirement is substantial and cannot be dispensed with, and that its omission constitutes a fatal defect in the proceedings.” In Battell v. Torrey, 65 N. Y. 296, in a proceeding under — 76 — the statute of the State of New York to sell or mortgage the real estate of an infant, which resulted in a mortgage, it was held that the mortgage executed was void because .the provisions of the statute were not complied with. See also Roche v. Vesters, 72 Md. 264, 19 Atl. 535, 7 L. R. A. 533; Ellwood v. Northrop (N. Y.), 12 N. E. 590; 11 Cyc. 670, 682; Hawes on Jurisdiction of Courts, sec. 38; Brown on Jurisdiction, sec. 3-a, and cases cited in notes to that section. To hold that the proceedings in the original case were valid would be to disregard the plain requirements of the statute — requirements indispensable to a proper exercise of the power conferred upon the court. In the absence of any information as to the property belonging to the infants, and of any evidence tending to show that a sale would promote their interests or was necessary for their maintenance and education, there was nothing in the case which authorized the court to decree a sale. It clearly appears upon the face of the record that the facts authorizing the court to decree a sale were not only not shown, but that there was no evidence tending to establish such facts. In reaching the conclusion that the proceedings in the original suit were invalid, we have not been unmindful of the fact that sound policy requires that judicial sales should be sustained as far as possible consistent with the rights of others, and that innocent purchasers are favorites of the law. But infants are also the favorites of courts of chancery. They are not only incapable of conveying their real estate, but are incompetent to consent to any of the proceedings provided by law for its disposition. In such a proceeding as the one involved in this case, they stand in the position of hostile parties to it and are treated as objecting to every step taken therein. Ellwood v. Northrop, supra, 590, 593. While the purchaser at such a sale — 77 — is not bound to investigate the truth of the matters stated in the bill and deposed to by the witnesses touching the estate owned by the infants, or as to the propriety or the necessity of the sale, since his title cannot be affected because the case made by the record happens not to be warranted by the facts (Durrett v. Davis, 24 Gratt. 302, 308), yet he is required to see to the regularity of the proceedings upon which the jurisdiction of the court is founded (S. C.) ; for he is presumed to know that the infant until six months after his maturity has the right to show cause against the decree of sale, for errors upon the face of the record, or to show that the court had no jurisdiction to enter the decree, or, if it had jurisdiction, that the proceedings were irregular and not binding upon the parties, or that the case made by the record did not warrant the decree. Walker v. Page, 21 Gratt. 636, 645; Durrett v. Davis, supra. It follows from what has been said that the court is of opinion that the decree appealed from must be reversed and set aside, and that the decree in the original suit confirming the sale made to the appellees, the Virginia Stave and Heading Company, should be set aside and annulled. But since the appellees have cut and removed the greater part of the timber attempted to be sold, so that that portion of the timber cannot be restored to the infants, it will be necessary to ascertain the value of the timber belonging to the infants so cut and removed by the appellees, as of the date of cutting and removing, and to charge them with the same and credit them with the purchase money paid by them, or so much thereof as may be necessary to satisfy the amount ascertained to be so due from them for the timber so cut and removed; and if it does not require all of the said purchase money to satisfy the amount so due from the appellees, to direct the residue thereof to be paid them; and if said purchase money be not sufficient to pay — 78 — the said amount, to render a personal decree against the appellees for the balance due from them. The decree appealed from will be reversed, and this court will enter such decree as the circuit court ought to have entered, reversing and setting aside the decree confirming the sale of the timber made in the original cause, and remand the cause to the circuit court for further proceedings to be had in accordance with the views expressed in this opinion. Reversed.