Hoskins v. Ames

Terral, J., delivered the opinion of the court. This is an action of ejectment for certain lands in Noxubee county. The appellees obtained a verdict through a peremptory instruction in their behalf. The appellants are remainder-men under the last will and testament of Edmund Hatch, who. died in 1851, leaving a last will and testament in which he devised a life estate to the mother of appellants and the remainder in fee to them. In 1853 the vice-chancery court at Macon, upon the petition of the life tenant and her husband, decreed a sale of the entire real estate — i. e., of the life estate and also of the remainder — which was purchased by W. B. Welbourne, under whom the appellees claim. The life tenant and her husband were made commissioners for the sale of said estate, and they executed their office without bond and at private sale, in compliance with the decree of the court. The decree of sale required the proceeds to be reinvested in other real estate under the same limitations as the land sold; but there is nothing in the record to show such reinvestment, and so, there being no implication that appellants ever received any benefits of the proceeds of said sale, no question of estoppel arises in the case. The questions presented are: (1) whether the sale was legal; (2) whether the statute of limitations bars the right of appellants. 1. The constitution of 1832, art. 4, sec. 16, declared: “A separate superior court of chancery shall be established, with full jurisdiction in all matters of equity. ’ ’ In 1848, in Freeman, v. Guion, 11 Smed. & M., 58, it was held that this section of the constitution referred “to the system of equity in force in [992] this state, as derived from the English system and modified by our legislation. ’ ’ In England the rule is well settled that equity has no inherent power to sell the real estate of an infant as being for its best interest or for reinvestment. Lord Chancellor Hardwicke, declared by Lord Campbell to be the most consummate judge who ever sat in the court of chancery, in Taylor v. Phillips, 2 Ves. said: “There is no instance of this court’s binding the inheritance of an infant by any discretionary act of the court. As to personal things, as in the composition of debts, it has been done, but never as to the inheritance, for that would be taking on the court a legislative authority, doing that which is properly the subject of a private bill.” And since that time, a period of more than one hundred and fifty years, we find no case in the English decisions that contravene the doctrine established in that case. The English parliament was accustomed, at the suggestion of the judges, to pass a bill authorizing the court of equity to decree a sale of the infant’s real estate for reinvestment; but the court of its own authority, as an equity court and without the power conferred by a legislative act, has always declined to order the sale of the inheritance of an infant. Edmund Hatch, in his will, devised a life interest to his daughter and a fee to her children, his grandchildren. It is the clear intention of the testator that the life tenant should have no power to dispose of the fee, and yet, if by a petition in the chancery court it can invest him with the power of sale, the intention of the testator is defeated. The power to make the devise is useless if equity can, in effect, annul it. Many American courts hold to the English doctrine on this subject, while many also hold that equity may decree the sale of lands of an infant whenever it shall be for its interest to have a sale of them made. In reference to these American cases we are disposed to repeat what was said by the court in Freeman v. Guion, 1I Smed. & M., above quoted, as most, if not all, the American cases, holding a doctrine adverse to the English rule, [993] have been decided since the adoption of our constitution of 1832, and of necessity it was not adopted with any reference to their holdings. A list of the authorities on each side of the question may be found in the notes to the case of Richards v. Ry. Co. (106 Ga., 614; 33 S. E. Rep., 193), in American and English Decisions in Equity, p. 560 et seq. Without any criticism of the cases, we content ourselves in referring to the above book, where the learned reader will-find all the cases on this subject commented upon by the author. 2. The life tenant died in 1899, and until her death there was no rig'ht of action in the appellants. We are of the opinion that the statute of limitations did not commence to run against appellants until the death of their mother, and they are not barred. Gibson v. Jayne, 37 Miss., 164. Reversd and remanded.