French v. Pocahontas Coal & Coke Co.

POEEENBARGER, JUDGE : This appeal is from a decree dismissing a bill in equity, having for its purpose annulment of a sale of real estate belonging to infants, máde in a summary proceeding prosecuted under certain provisions of chapter 83 of the Code, for noncompliance with requirements of the statute. The grounds of the attack upon the proceeding are lack of notice to the infants; failure of the petition to describe all of their real and personal property and set forth all .the facts [228] necessary to show the propriety of the sale; adjudication and payment of a large part of the purchase money to alleged judgment-lien creditors, without inquiry as to the validity or propriety of the liens; and representation of the guardian in the proceeding by attorneys representing corporations adverse to the interests of the infants, at the same time, in other proceedings, one of which was the purchaser of the property in question. An order made in the proceeding recites that notice had been given to all of the defendants or had been waived by them, but the notice given appears in the record and shows service snereof was accepted by an attorney professing to act for the infants who were all of very tender age. In his acceptance thereof he attempted to waive all further notice of the proceeding. A guardian ad litem was appointed for the infants. The attorney who accepted service of the notice was the brother-in-law and legal adviser of the guardian, the mother of the infants, and there is nothing in the record indicative of infidelity on his part to her or her children, or neglect of their interests. The proceeding seems to have been a merely formal one designed for consummation of a sale agreed upon in advance. The mother denies all knowledge or recollection of the proceedings, but admits her signature to the petition, and it appears to have been sworn to by her. She also signed a bond given, and a 'report made, in the proceeding. In the latter paper, she represented to the court that she had executed a deed conveying the property, agreeably to the sale she had been authorized to make, and received more than half of the purchase money, out of which she had discharged one of the judgment liens. There is nothing in the record conclusively showing the sale was unfair, unnecessary, unreasonable, or made for an inadequate price. Defense was made to the bill in this cause principally upon the grounds of collateralness of the attack upon the proceeding and regularity and sufficiency of the proceeding. That the attack upon it is not collateral is clear. Two of the infants were still under age when the bill was filed. In such eases, neither an appeal in the cause nor a formal reopening thereof [229] in the court below is necessary. “An infant may show cause against a decree by bill, bill of review, supplemental bill in the nature of a bill of review, petition or answer.” Lafferty v. Lafferty, 42 W. Va. 783: Stewart v. Tennant, 52 W. Va. 559. An infant’s right to show cause against a decree affecting his interest is unhampered by any technical rules of procedure. The summary proceeding was defective in at least one aspect, lack of notice thereof to the infants. The proceeding is statutory and administrative. Ammons v. Ammons, 50 W. Va. 390; Frantz v. Lester, 82 W. Va. 328, 2 A. L. R. 1558. To effect a regular and unimpeachable sale, the requirements of the statute must be strictly complied with, and the courts cannot rightfully dispense with the requirements of notice to the infants. Tiro statute specifically prescribes ten days notice to all persons interested before the hearing of the petition. It matters not that service of such notice upon a young child may be deemed a useless proceeding. Expediency of the requirement was a question for the Legislature and it has passed upon it. There are very few, if any, instances in which failure to give notice to infants or serve process upon them, in proceedings for the sale of their veal estate, has been excused. We have been unable to find any. The universal holding seems to be that it is inexcusable. 14 R. C. L. p. 284, citing many cases. It is not excused nor cured by appointment of a guardian act litem and defense made by him. Clark v. Thompson, 47 Ill. 25; Martin v. Bailey, 87 Kan. 582; Coleman v. Coleman, 3 Dana (Ky.) 398; Westmeyer v. Gallenkamp, 154 Mo. 28. This defect, however, renders the sale voidable only, if not ratified or validated, not absolutely void. Frantz v. Lester, 82 W. Va. 328, 2 A. L. R. 1558, following Garland v. Loving, 1 Rand. 396; Goddin v. Vaughn's Ex'r, 14 Gratt. 102; Daniel v. Leilch, 13 Gratt. 195; and Faulkner v. Davis, 18 Graft. 651. notwithstanding the character of the proceeding, it is remedial and the statute authorizing it is liberally construed. The sale is impeachable for defects in procedure, and the infant may overthrow it and set it .aside, unless the purchaser can show the circumstances obtaining at the time of the sale, though not fully shown in the proceeding, were such as then justified the sale. If he can do so, the court may ratify and validate the de230 feetive sale. As the court might have authorized the sale, when, made, it might ratify and confirm what it could have ordered and attempted to order, but failed legally and validly to order, by reason of the mistake or oversight in procedure, tinder a liberal interpretation of the statute, this authority is held to have been within the intention'of the Legislature. “Under the statute, the court does not merely grant a general authority or power to the guardian to sell the real estate of the ward. It makes the sale itself through the guardian acting as its agent, or otherwise, and adopts adequate measures prescribed by the statute for preservation of the fund arising therefrom. The guardian seems to be vested with the sole power of initiation, but in all other respects the court is in full control of the proceeding. There is a cause of action whenever the interests of the ward require a sale.5’ Frantz v. Lester, 82 W. Va. 328, 335; 2 A. L. R. 1558. The dismissal of tire bill in this cause is not the same in legal effect as a ratification of the sale, nor does it proceed upon the theory of ratification. It assumes, either that the sale could not be impeached upon this bill, or that it is regular and invulnerable. As it can be assailed by the bill and is impeachable and will fail unless it can be ratified, the decree is plainly wrong and will have to be reversed. But, in as much as we can see that the purchaser may be able to validate the sale by filing a cross-bill praying ratification thereof, and that the cause has not been sufficiently developed to enable the court to arrive at the ultimate right and justice thereof, no final decree ought to be entered here in the present state of the record. Under such circumstances, it is our practice to remand the cause, with leave to the parties to fully develop it. Harrison v. Harman, 85 W. Va. 538, 102 S. E. 224; Wildell Lumber Co. v. Turk, 75 W. Va. 26; LaBelle Iron Works v. Savings Bank, 74. W. Va. 569; Cook v Lumber Co., 74 W. Va. 503. The decree will be reversed and the cause remanded.