Tise ex rel. Tise v. Shaw

Irving, J., delivered the opinion of the Court. This action of ejectment was instituted against one Charles Parker, who died, and on motion of the plaintiffs his infant children, (all of whom, by the agreed statement of facts, were under the age of sixteen years) were made parties defendants, and Zachariah Shaw was appointed guardian ad litem to defend for them. He appeared by attorney and pleaded their infancy by way of plea in abatement, and insisted that it was not for the benefit of the infants to have the action tried during their infancy. This plea in abatement was duly verified by the affidavit of the guardian ad litem. It seems to have been pleaded at the imparlance term; and the Court overruled a motion of ne reeipiatur based on the contention that it should have been filed by the rule day. The rules of the Court are not in the record, and we must assume the Court in its action properly interpreted the requirement of its own rules. It also appears by the record that a demurrer was filed to this plea in abatement, which demurrer was first sustained by the Court, but afterwards this ruling was stricken out and the demurrer was overruled, and judgment was given thereo.n for the defendants; and then the Court ordered “that this case shall not be tried until all the infants arrive [6] at full age.” Appeal was at once taken to this Court. There having been no final judgment in the cause, but only an order for a continuance till the infants reach full age, we do not .see how an appeal can be sustained. But as the appeal was designed to test the validity and operative character of the statute under which the order of the Court continuing the cause was passed, we will con-’ sider the question, which is one of great importance. The 40th section of Article 75 of the Code of Public General Laws is in this language: “Where a party in any action brought to recover lands, or in which the title thereof is involved, shall die, and the proper person to be made a party in the place of the person so djúng, shall be an infant, such action shall not be tried during such infancy, unless the guardian or next friend of such infant satisfy the Court that it will be for the benefit of the infant to have the action tried during his infancy; but the action may be continued till the infant arrives at age.” The. order of the Court continuing the cause rests for its authority on the imperative language of this statute which says that in a case of infancy the case shall not he tried, but, instead of abating it and putting an end to it entirely, also provides the suit may be continued until the infant shall attain majority. At the common law the “parol demurred” in such case. Tidd’s Practice, 635; Alex. Brit. Stat., 122; and this statute was, in effect, but making the common law a statutory provision. It is contended that this provision is no longer operative, and is so far inconsistent with the provisions of Art. 2', sec. 1, of the Code, which are so general, that it cannot be enforced. Sec. 1 of Art. 2, and sec. 40, Art. 75, both came from the same Act, the Act of 1785, chap. 80. The first is sec. 1 and the second is sec. 2 of that Act. After making the general provision that suits should not abate by reason of death, an exception was made in the event named [7] in the second section. The two sections of this Act of 1785 having been both re-enacted in 1860, when the Code was adopted, neither can have superiority over the other, and they must be construed together and both made to stand, as they did in the Act of 1785, the second section as an exception to the first. For convenience sake they have been separated in the Code and no longer stand in juxtaposition as in the original, but having been re-enacted at one and the same time, they must be construed as if they had continued side by side. We find no instances in our reports where the statute has been enforced, but it has several times been recognized as the law. In Hammond vs. Hammond, 2 Bland, 336, Chancellor Bland says, formerly the parol demurred both in law and equity, but there had been a change by statute as to equity ; and that the statute allowing sales of decedents’ real estate for the payment of debts was passed to give the Chancellor power to decree sale after the infaut heir had been summoned and answered. He quotes the language of this section under consideration as being the law enforceable at law in the cases provided for. He so recognizes it in Watkins vs. Worthington, 2 Bland, 509-519, and in Tessier vs. Wyse, 3 Bland, 28-29. In James vs. Boyd, 1 H. & G., 1, the judgment below was sustained because it did not affirmatively appear at the trial that the heir was not then of full age. The law was evidently not thought a wise one; but inferentially the Court recognized its binding authority, if the condition of things justified or required its application, and the Court assigned a reason why that case did not require a reversal of the judgment appealed from because of its provisions, viz., that it did not appear the party was a minor when, the case was tried. It was contended in argument, that its enforcement will operate harshly, and that because of its apparently long disuse it should be treated as obsolete. In the days of feudal tenures and the rights of primogeniture, it may have [8] served a useful purpose, but in the changed condition of things in the present day, it seems to us to operate as an obstruction of justice rather than as a protection of rights, and in our opinion it should no longer have place on the statute book. But the statute is plain, imperative and unambiguous, and was re-enacted as part of the written law of the State as late as 1860, when the Code was adopted; and it cannot be disregarded. It is not our province to repeal it. Having been so long the law, and unchallenged as void because it is in derogation of common right, we cannot so declare it. The Legislature must deal with it, if it is hurtful. (Decided 18th November, 1887.) Appeal dismissed.