Guest v. Sims and Wife and Catesy Taylor, Etc. , 1 Tenn. 79 ( 1804 )

Day allowed infants after coming of age to impeach a decree for the specific performance of their ancestors' contract to convey lands. Bill in equity, for a specific performance of a parol contract to convey part of two hundred acres of land within certain agreed lines. This contract took place previous to November, 1801. Bill taken,pro confesso, against Sims and wife.

Adam Meek, the guardian of the infants, answered and acknowledged the contract.

Decree for a conveyance, to be absolute against the infants six months after coming of age.¹

NOTE. — It is believed that the practice in this State has not been in accordance with this decision, which is carried into our digests with a semble. Its correctness may admit of doubt. It has been said that in all decrees against infants a day must be given them, after they come of age, to show cause. Eyre v. Countess of Shaftesbury, 2 P. Wms. 120. But Lord Hardwicke, in Sheffieldv. Duchess of Buckingham, 1 West, 684, said that he took it to be the course of the Court not to give a day unless a conveyance was directed, either in form or substance. This, according to Mr. Daniel, appears to be the most correct statement of the practice. 1 Dan. Ch. Pr. 209. And now it seems that in England in all cases in which the Court is by statute empowered to order the immediate conveyance of an infant's estate, the old practice is altered. Id. 208. In Mills v. Dennis, 3 J. Ch. 146, and Winston v. Campbell, 4 Hen. Mun. 477, it was held that a decree of sale against an infant is valid, unless he be directed to join in the deed. And to this effect is Rogers v. Clark, 5 Sn. 665, 668. By 1801, 6, 48, and 1838, 176, brought into the Code, §§ 4103, 4104, the Court may divest and vest title directly by the decree, instead of ordering parties to convey. The decree in the principal case was, however, made in 1804, and after the Act of 1801, 6, although the contract itself was entered into previous to the 1st of January, 1802, when the Act of 1801, 25, our statute of frauds, went into effect. — ED.

¹ See Orders in Eq.