The Bank of the United States and others, "under the authority
of the act of the Legislature" of Maryland, passed in the year
1785, entitled an act for enlarging the powers of the "High Court
of Chancery," under which the real estates of persons descending to
minors, and persons
non compos mentis, were authorized to
be sold for the debts of the ancestor, proceeded against the real
estate of A. for debts due by him, and in 1826 the estate was sold
by a decree of the Circuit Court of the District of Columbia,
exercising chancery jurisdiction. Afterwards, in 1828, some of the
infant heirs of A., by their next friend, filed a bill of review
against the administrator of A., the purchaser of his real estate,
and others, stating various errors in the original suit and in the
decree of the court, and prayed that the same should be reversed.
Held that a bill of review can be sustained in the
case.
From the language of the fifth section of the act, some doubt
was entertained whether the act conferred a personal power on the
chancellor or was to be construed as an extension of the
jurisdiction of the court. If the former, it was supposed that a
bill of review would not lie to a decree made in execution of the
power. On inquiry, however, the Court is satisfied that in
Maryland, the act has been construed as an enlargement of
jurisdiction, and that decrees for selling the lands of minors and
lunatics in the cases prescribed by it have been treated by the
court of appeals of that state as the exercise of other equity
powers.
In all shits brought against infants, whom the law supposes to
be incapable of understanding and managing their own affairs, the
duty of watching over their interests devolves in a considerable
degree upon the court. They defend by guardian, to be appointed by
the court, who is usually the nearest relation not concerned in
point of interest in the matter in question. It is not error, but
it is calculated to awaken attention that in this case, though the
infants, as the record shows, had parents living, a person not
appearing from his name or shown on the record to be connected with
them was appointed their guardian
ad litem.
The answer of the infant defendants in the original proceeding
is signed by their guardian, but not sworn to. It consents to the
decree for which the bill prays, and without any other evidence,
the court proceeds to decree a sale of their lands. This is
entirely erroneous. The statute under which the court acted
authorizes a sale of the real estate only where the personal estate
shall be insufficient for the payment of debts, when the justice of
the claims shall be fully established, and when, upon consideration
of all circumstances, it shall appear to the chancellor to be just
and proper that such debts should be paid by a sale of the real
estate. Independent of these special requisitions of the act, it
would be obviously the duty of the court, particularly in the case
of infants, to be satisfied on these points.
Page 33 U. S. 129
The insufficiency of the personal estate of A.R. to pay his
debts is stated in the answer of his administrator, but is not
proved, and is admitted in that of the guardian of the infants, but
his answer is not on oath, and if it was, the court ought to have
been otherwise satisfied of the fact.
The justice of the claims made by the complainants in the
original proceeding is not established otherwise than by the
acknowledgment of the infant defendants in their answer that
"according to the belief and knowledge of their guardian, they are,
as alleged in said bill, respectively due." The court ought
not to have acted on this admission. The infants were incapable
of making it, and the acknowledgment of the guardian, not on oath,
was totally insufficient.
The court ought to have required satisfactory proof of the
justice of the claims, and to have established such as were just
before proceeding to sell the real estate.
There was error in the original proceedings in ordering the sale
of the real estate of A.R. for the payment of his debts before the
amount of the debts should be judicially ascertained by the report
of an auditor.
The eighth section of the law which authorizes the sale of real
estate descending to minors enacts
"That all sales made by the authority of the chancellor under
this act, shall be notified to and confirmed by the chancellor
before any conveyance of the property shall be made."
This provision is totally disregarded. The sale was never
confirmed by the court, yet the conveyance has been made. It is a
fatal error in the decree that it directs the conveyance to be made
on the payment of the purchase money without directing that the
sale shall first "be notified to, and approved by" the court.
The conveyances of the real estate, made under the original
proceeding, were properly set aside by the decree of the court
below. The relief might be very imperfect if, on the reversal of a
decree, the party could under no circumstances be restored to the
property which had been improperly and irregularly taken from
him.
The appellees filed their bill of complaint in the circuit court
in the nature of a bill of review against the appellants, in which
they set forth that in the year 1825, the appellants filed their
bill against the complainants and others, as heirs at law of Abner
Ritchie deceased, under the Act of Assembly of Maryland of 1785,
chap. 72, sec. 5, alleging themselves to be the creditors of said
Abner Ritchie in the several sums of money mentioned in said bill;
that John T. Ritchie, son of said Abner, and one of said
defendants, had obtained letters of administration upon the estate
of said Abner; that complainants had frequently applied to him for
the payment of their debts, which he refused, saying that he had
not assets of the said estate to pay them or any part thereof, and
that said Abner
Page 33 U. S. 130
had died without leaving personal estate to discharge the debts
due by him; that said Abner died possessed of real estate described
in an exhibit filed therewith, and that the defendants are the
heirs at law of the said Abner, and pray process, &c., against
them.
The bill of review proceeds to aver that said process did
accordingly issue, and that before said these complainants appeared
to the same, an order was obtained by the solicitor for the then
complainants appointing Thomas Turner guardian to appear and answer
for them; that this order was obtained without their knowledge or
approbation and without its having been made to appear that the
said parties were infants and without its appearing, by the terms
of the said order, that Turner was appointed guardian for these
parties; that said Turner did, however, appear for them as their
guardian and filed an answer for these complainants admitting the
truth of all the allegations in the bill; that said bill is not on
the oath of said pretended guardian, as is usual. They further
state that John T. Ritchie, Sr., filed his answer to said bill and,
alleging that he himself was a large creditor of deceased,
suggested a reference of the various claims to an auditor. That in
the year 1826, B. L. Lear, solicitor for said complainants, and T.
Swann, also solicitor of said court, misled by some person or
persons, entered into an agreement to set the cause for hearing,
and did consent that a decree should pass, and which was passed by
said court, decreeing that said real estate should be sold and that
trustees should convey the same, and that these parties, on their
arrival at age, should release to the purchasers all their title to
the same. That said sale was accordingly made, and said T. Ritchie,
Sr. became the purchaser, and hath received a conveyance.
The parties aver that Mr. Swann had no authority to appear for
them or to enter into any consent or agreement on their behalf, or
that any decree should be entered against them, and that said
proceedings were had without their knowledge or assent, and have
never been acquiesced in; that their friends and natural guardians
were overlooked and unconsulted. That they are aggrieved by said
decree, and ought not to be bound thereby -- that they ought not to
convey their estate as by the decree is directed, that said decree
is erroneous, and ought of be reversed -- and assign several
errors:
Page 33 U. S. 131
1. There is no allegation in the bill or evidence filed in the
case that Abner Ritchie died without leaving personal estate
sufficient to pay his debts.
2. That there is no allegation or evidence that his real estate
descended to a minor.
3. That said decree was made without any legal or sufficient
answer by these complainants, and without the several matters
contained in the bill being taken
pro confesso against
them.
4. That there is neither allegation nor proof that either of
said defendants was a minor and incapable of answering without a
guardian.
5. That the court appointed a guardian
ad litem without
naming the infant defendants or causing them to be brought into
court to have a guardian appointed, and without any averment or
proof that either of them was a minor.
6. That the order appointing a guardian is vague, uncertain, and
void.
7. That the answer of Turner professing to be guardian, &c.,
not being under oath, is insufficient and void.
8. That said decree purports to be by consent, whereas it
appears that these complainants never appeared to said suit in
person or by guardian, and therefore never could have assented, and
cannot, as minors, be bound by the consent of an attorney.
9. That there is not sufficient matter alleged in the bill to
sustain the decree if the parties had been competent to assert and
had asserted.
10. Because the decree, contrary to right and equity and the
uniform rule and practice of the court, directs the trustee to
convey, without a ratification of his sale.
11. Because the decree is an absolute one, without giving
complainants a day after they shall arrive at age to show cause
against the decree.
The bill then avers the death of Henry Carbery, one of the
complainants to the first bill, about three years before the filing
of said bill, and prays a review and reversal, &c.
Several of the defendants appeared, and disclaiming any
interest, &c., assent to the review and reversal
John T. Ritchie answers, averring the correctness of the
proceeding, and prays a confirmation of what has been done.
Page 33 U. S. 132
The Bank of the United States and Union Bank of Georgetown,
answering, admit that the original was filed as stated and require
proof of the further allegations of complainants; they aver the
sufficiency and correctness of the former proceedings, and deny
that there is any sufficient cause for a review &c.
The circuit court decreed a reversal of the original decree and
annulled all the proceedings had under it, declaring the parties to
be restored to their original rights.
The proceedings in the former case, constitute the only evidence
in the case of the review.
For the appellants, it will be contended
1. That no decree can be set aside or reversed on a bill of
review, for any reason not appearing on the face of the decree
itself, whereas most of the objections here urged, were dehors the
decree.
2. Because such of the reasons as are alleged to appear on the
face of the decree itself, are wholly insufficient.
3. Because a bill of review will lie only where the original
decree, of which complaint is made, has been fully executed by the
party complainant, whereas the contrary is apparent on the face of
the bill of review.
4. Because the decree of reversal transcends the power of the
court, and extends further than the court had jurisdiction to
decree.
5. Because it is in other respects inequitable and illegal.
Page 33 U. S. 140
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
The Bank of the United States and others, alleging themselves to
be creditors of Abner Ritchie deceased, instituted this suit in
chancery against John T. Ritchie administrator, and one of the
heirs of the said Abner, and against John T. Richie, Jr. and
others, who were the infant heirs of the said Abner, praying that
his real estate may be subjected to the payment of the debts due to
them, and that so much of the said estate might be sold as would
satisfy their claims.
The bill charges that Abner Ritchie died possessed of a
considerable estate, not having left personal estate sufficient to
pay his debts.
The subpoena was returned, executed on John T. Ritchie, the
other defendants not found. On being called, they appeared by
attorney, whereupon, on motion of the plaintiffs,
Page 33 U. S. 141
Thomas Turner was appointed guardian to appear and answer for
the infant defendants. The infant defendants answer that according
to the belief and knowledge of their guardian, the said claims are,
as alleged in said bill of complaint, due and owing to the several
complainants and that Abner Ritchie did die, leaving personal
property insufficient for the payment of his debts, having, as is
alleged, real property &c., and that they have no objection to
the sale of a part thereof sufficient to pay his debts. The answer
is not sworn to by the guardian.
The answer of John T. Ritchie, administrator, and one of the
heirs of Abner Ritchie, admits that his intestate died considerably
indebted; suggests that the claims of the complainants should be
referred to an auditor, alleges that he is himself a creditor and
that the personal assets of his testator are insufficient for the
payment of his debts. He is willing that the real estate should be
sold and the proceeds applied to the payment of debts.
The cause came on to be heard by consent, and on 21 June, 1826,
the court also, by consent of parties, decreed that the real estate
of Abner Ritchie deceased, or such part thereof as may be necessary
for the purpose, be sold for the payment of the debts due to the
complainants and of such other creditors as should come in,
&c., within the time prescribed in the decree. A trustee was
appointed to make the sale, who, after giving bond with surety and
advertising the real property left by the said Abner, or so much
thereof as might be deemed sufficient to satisfy his debts, at
least three weeks, should proceed to sell the same to the highest
bidder, one-fourth of the purchase money to be paid in cash and the
residue in four equal installments at six, twelve, eighteen, and
twenty-four months, for which the trustee is to take the notes of
the purchaser, the property to stand as security for the payment of
the purchase money. And upon payment of said notes and interest,
the said trustee and the heirs of Abner Ritchie as they
respectively attain the age of twenty-one years shall convey in
fee. The trustee was directed to report his proceedings to the
court at the succeeding term, and to pay into court the net
proceeds of the first payment, and on payment of the balance, was
to convey. The court appointed Joseph Forrest to report on such
claims on the estate of Abner
Page 33 U. S. 142
Ritchie as should be proved to him before the first Monday in
the succeeding November, and the administrator of Abner Ritchie was
directed to exhibit to him the settlement of his administration
account with the orphan's court.
On 28 March, 1828, the trustee reported that after giving bond
and advertising as required by the decree, he had, on 17 July,
1826, sold the property at public sale to John T. Ritchie, the
highest bidder, for the sum of $2,715. That, Mr. Ritchie having
produced satisfactory evidence of his having paid all the debts,
and becoming the only creditor to an amount exceeding the amount of
sales, he had made to him a deed conveying the property.
On 10 June, 1828, the auditor made his report, in which he
disallows several claims to a large amount, made by John T. Ritchie
against the estate of Abner Ritchie.
In 1828, some of the infant heirs of Abner Ritchie, by their
next friend, filed their bill of review against the complainants in
the original suit and against John T. Ritchie, the administrator of
Abner Ritchie and the purchaser of his real estate, and against
such of the other defendants as do not become plaintiffs, in which
they state the proceedings in the original suit, and assign various
errors in the decree, for which, and for other errors therein, they
pray that the same may be reviewed and reversed, that the deed made
by the trustee to the defendant John T. Ritchie, and all deeds made
by him to the other defendants, may be declared void, and that the
sales made by the trustee may be set aside.
The infant defendants answer by their guardian, and admit the
allegations of the bill. The other defendants also answer, and
insist on the original decree.
The cause came on to be heard in May term, 1830, by consent,
when the court, being of opinion that there was manifest error in
the original proceedings and on the face of the decrees, did
adjudge, order, and decree that the same should be reversed and
annulled, and that all proceedings of the trustee therein named,
and all sales and deeds made by him by virtue thereof to the
defendant John T. Ritchie or any other person, and all deeds made
by the said John T. Ritchie of the said real estate to either of
the other defendants, or for their use,
Page 33 U. S. 143
so far as respects the interest of any of the heirs of Abner
Ritchie, except the said John T. Ritchie, Sr., should be utterly
null and void, and that the complainants be restored to their
original estates.
From this decree the defendants appealed to this Court. A doubt
has been suggested whether a bill of review could be sustained in
this case. The parties proceeded under an Act of the Legislature of
Maryland passed in the year 1785, ch. 72, entitled, "an act for
enlarging the power of the High Court of Chancery." The fifth
section enacts
"That if any person hath died or shall hereafter die without
leaving personal estate sufficient to discharge the debts by him or
her due, and shall leave real estate which descends to a minor or
person being idiot, lunatic, or
non compos mentis, or
shall devise real estate to a minor or person being idiot, lunatic,
or
non compos mentis or who shall afterwards become
non compos mentis, the chancellor shall have full power
and authority, upon application of any creditor of any deceased
person, after summoning such minor, and his appearance by guardian,
to be appointed as aforesaid, and hearing as aforesaid, or after
summoning the person being idiot, lunatic, or
non compos
mentis, and his appearance by trustee, trustees, or committee,
to be appointed as aforesaid, and hearing as aforesaid, and the
justice of the claim of such creditor is fully established; if,
upon consideration of all circumstances, it shall appear to the
chancellor to be just and proper that such debts should be paid by
a sale of such real estate, to order the whole or part of the real
estate so descending or devised to be sold for the payment of the
debts due by the deceased."
From the language of this section, some doubt was entertained
whether the act conferred a personal power on the chancellor, or
was to be construed as an extension of the jurisdiction of the
court. If the former, it was supposed that a bill of review would
not he to a decree made in execution of the power. On inquiry,
however, we are satisfied that in Maryland, the act has been
construed as an enlargement of jurisdiction, and that decrees for
selling the lands of minors and lunatics in the cases prescribed by
it have been treated by the court of appeals of that state as the
exercise of other equity powers.
Page 33 U. S. 144
We proceed then to examine the original decree and the errors
assigned in it.
In all suits brought against infants whom the law supposes to be
incapable of understanding and managing their own affairs, the duty
of watching over their interests devolves, in a considerable
degree, upon the court. [
Footnote
1] They defend by guardian to be appointed by the court, who is
usually the nearest relation not concerned in point of interest in
the matter in question. [
Footnote
2] It is not error, but it is calculated to awaken attention
that in this case, though the infants, as the record shows, had
parents living, a person not appearing from his name or shown on
the record to be connected with them was appointed their guardian
ad litem.
He was appointed on the motion of the counsel for the plaintiffs
without bringing the minors into court or issuing a commission for
the purpose of making the appointment. This is contrary to the most
approved usage, [
Footnote 3]
and is certainly a mark of inexcusable inattention. The adversary
counsel is not the person to name the guardian to defend the
infants.
The answer of the infant defendants is signed by their guardian,
but not sworn to. It consents to the decree for which the bill
prays, and, without any other evidence, the court proceeds to
decree a sale of their lands. This is, we think, entirely
erroneous. The statute under which the court acted authorizes a
sale of the real estate only where the personal estate shall be
insufficient for the payment of debts, when the justice of the
claims shall be fully established, and when, upon consideration of
all circumstances, it shall appear to the chancellor to be just and
proper that such debts should be paid by a sale of the real estate.
Independent of these special requisitions of the act, it would be
obviously the duty of the court, particularly in the case of
infants, to be satisfied on these points.
The insufficiency of the personal estate of Abner Ritchie to pay
his debts is stated in the answer of his administrator, but is not
proved, and is admitted in that of the guardian of the
Page 33 U. S. 145
infants, but his answer is not on oath, and if it was, the court
ought to have been otherwise satisfied of the fact.
The justice of the claims made by the complainants is not
established otherwise than by the acknowledgment of the infant
defendants in their answer that, "according to the belief and
knowledge of their guardian, they are, as alleged in said bill,
respectively due."
The court ought not to have acted on this admission. The infants
were incapable of making it, and the acknowledgement of the
guardian, not on oath, was totally insufficient. The court ought to
have required satisfactory proof of the justice of the claims, and
to have established such as were just before proceeding to sell the
real estate.
Without knowing judicially that any debts existed, or the amount
really due, or the value of the real estate, the court directed
"That the real estate of the said Ritchie, or such part thereof
as may be necessary for the purpose, be sold for the payment of
debts of said Ritchie to complainants and to such other creditors
of said Ritchie as shall come in and bear their proper proportions
of the costs and expenses of this suit and shall exhibit their
claims, with the proper proof thereof to the auditor hereinafter
appointed"
&c. The decree does not postpone the sale until the claims
should be exhibited to the auditor, and consequently, so far as
other creditors were concerned, leaves the trustee without
information as to the quantity of property it would be his duty to
sell. He accordingly sold the whole estate.
The eighth section of the law, which authorizes the sale of real
estate descending to minors, enacts
"That all sales made by the authority of the chancellor under
this act shall be notified to and confirmed by the chancellor
before any conveyance of the property shall be made."
This provision is totally disregarded. The sale was never
confirmed by the court, yet the conveyance has been made. It is a
fatal error in the decree that it directs the conveyance to be made
on the payment of the purchase money, without directing that the
sale shall first "be notified to, and approved by" the court.
There are radical errors apparent on the face of the decree
which show that the interests of the infants have not been
protected as is required by law and usage and that great
Page 33 U. S. 146
injustice may have been done them. The decree therefore ought to
have been reversed.
The appellants contend that, even admitting the propriety of
reversing the original decree, the circuit court ought to have
stopped at that point, and not to have set aside the conveyances
which were made under its authority.
All the persons affected by the decree now under consideration
were parties when it was made. The bill of review prays for the
relief which the court granted, and states all the facts which
entitled them to that relief. The power of the court was, we think,
competent to grant it if it was required by the principles of
equity and justice. The relief might be very imperfect if, on the
reversal of a decree, the party could under no circumstances be
restored to the property which had been improperly and irregularly
taken from him. Cooper, in his equity Pleading, page 95, says,
"The bill may pray simply that the decree may be reviewed and
altered, or reversed in the point complained of, if it has not been
carried into execution, but if the decree has been carried into
execution, the bill should also pray the further decree of the
court to put the party complaining of the former decree into the
situation in which he would have been if that decree had not been
executed. . . . A supplemental bill may likewise be added if any
event has happened which requires it."
In addition to these general principles which sustain the rule
laid down by Cooper, circumstances exist which require in an
eminent degree its application to this particular case. The decree
itself was disregarded by the trustee in executing the conveyance.
It directed him to receive one-fourth of the purchase money in
cash, and the residue in four equal installments. The first payment
is to be brought into court, and he is to make the conveyance on
receiving the last. He is not authorized to pay the money to the
creditors. The court has not entrusted to him the right of deciding
on the debts and disposing of the purchase money. He is only to
receive it before he conveys, and consequently should hold it
subject to the order of the court.
It does not appear that he has ever received a cent. He
undertakes to settle the account of Mr. Ritchie, the purchaser, and
to convey the property to him, in violation of the decree,
Page 33 U. S. 147
on being satisfied by him that he had paid all the debts, and
was himself a creditor to an amount exceeding the purchase
money.
He had no right to be satisfied of these facts. The court had
not empowered him to inquire into or decide on them. He has
transcended his powers, and with the knowledge of the purchaser and
in combination with him, has executed to him a deed which the law
did not authorize. This whole proceeding was irregular and ought to
be set aside. The plaintiffs in the original suit will then be at
liberty to prosecute their claims according to law.
The Court is of opinion that there is no error in the decree of
the circuit court, and that it be
Affirmed with costs.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Columbia holden in and for the County of Washington, and was argued
by counsel, on consideration whereof it is ordered, adjudged, and
decreed by this Court that the decree of the said circuit court in
this cause be and the same is hereby affirmed with costs.
[
Footnote 1]
Coop.Eq.pl. 28.
[
Footnote 2]
Coop.Eq.pl. 29.
[
Footnote 3]
Coop.Eq.pl. 109.
