Dorsey v. Gilbert , 11 G. & J. 87 ( 1839 )

Archer, J.,

delivered the opinion of this court.

It appears from the proceedings in this cause, that Joseph Ashton and others, filed a bill in the Court of Chancery, against the minor children of Preston McComas, alleging themselves to be his creditors, and that he had died, not leaving a sufficiency of assets to pay his debts. A decree was accordingly passed, and Henry Horsey became the purchaser. The trustee in his report of the sale, discloses the fact to the ChancelIor, that the infant children of Preston McComas, in right of their mother, were entitled to one-fifth of the lands sold under the decree, and suggests the propriety of awarding to the infants, as the sale was advantageous to them, one-fifth of the purchase money. A special act of the Legislature was then passed, providing for the confirmation of the sale, and for the conveyance of the undivided interest and estate of the minors, to the purchaser; but before a conveyance is ordered, provision is made, that upon application of the purchaser, the Chancellor may direct the answers of the infants to be taken according to the customary mode in Chancery, and may order proof to be taken of the fairness of the sale, and of the advantage of such sale to the infants. The act further provides, that the Chancellor shall award to the defendants in the suit, in right of their mother, such portions of the purchase money as they are entitled to as heirs of their mother.

In pursuance of the act of Assembly, Henry Dorsey, the purchaser, petitioned the Chancellor to confirm the sale, upon a compliance with the requisitions of the act being had, in pursuance of his orders to be passed for that purpose. The Chancellor dismissed this petition, upon the ground, that the special act of Assembly above referred to, was unconstitutional.

It was an undoubted power of the Court of Chancery, before any of our Legislative acts, authorising the sale of infants estates, to convert the real estate of an infant into money; and many cases may be found, where the guardians of infants, under particular circumstances, have been authorised to make this conversion, 2 Story's Eq. 585, 586, 587. The Court of Chancery in the exercise of this jurisdiction, acted under a delegated authority from the King, who as parens patria had jurisdiction over the persons and estates of infants.

The legislation of this State, in relation to the sale of infants estates, is but a modification and enlargement of an acknowledged power. In this exercise of power by the Legislature, it has not in our judgment, transcended any limitation of the constitution. The property of the infant is not in any manner impaired or lessened, but a change in its character alone effected, and that for his benefit; and as he is incapable of acting for himself, the State has properly confided a power for the purpose, which if exercised in conformity with the spirit of the power imparted, must prove salutary.

If this be the character of the laws authorising the sale of infant’s estates, on the petition of a guardian, or prochein amni, in cases where such sale would be advantageous to the infant, it would be difficult to sustain an objection to the act of Assembly under which the petition now under consideration, has been framed. According to the just construction of this act, no power was conferred on the Chancellor to confirm the sale, until he should receive the answers of the infants, and be satisfied by proof, (the character of which is pointed out by the act,) of the fairness of the sale, and that it was advantageous to the infants; thereby furnishing the infants with substantially the same safeguards, as are provided by the act of 1816, ch. 154. If the sale should be established to be one, beneficial to the infants, their interests would be advanced by its confirmation; and a power thus conferred, and attended with such results, is a power rightfully delegated by the State. That the sale had taken place without authority, under the bill filed by the creditors of Me Comas, W'hich is now sought to be confirmed, as to the constitutional question, cannot produce a different result, for it would make no difference, whether the object of the Legislature were to order a sale for the benefit of the infants, or to confirm one made without authority, if such confirmation was beneficial.

Nor do we think the character of the petitioner, can change the character of, the question. He is a purchaser, and not a guardian, and although he might have interests adverse to the infants, the rights of the latter are protected by the judgment, which the Chancellor shall pronounce on the question of advantage or disadvantage to his interests, when the proof shall be exhibited to him.

DECREE REVERSED AND CAUSE REMANDED FOR FURTHER PROCEEDINGS.