Bulow v. Witte

3 S.C. 308, 1872 S.C. LEXIS 15

• Court: Supreme Court of South Carolina
• Decided: April 16, 1872
• Status: Published

Opinion

The opinion of the Court was delivered by

Moses, C. J.

We are without the benefit of the view's which induced the conclusion of the Circuit Judge, which the motion here seeks to reverse.

The bill before him prayed relief against the' order of the Court of Equity under the petition of the said J. A. Winthrop and A. G. Rose, so far as it directed the sale of the plantation called Long Savannah, claimed by the plaintiffs under the will of their grandfather, John Joachim Bulow. “Regarding the proceedings which led to the decree as at least irregular, and the sale not in accordance with the spirit or letter of the decree,” and assuming that the prayer of the bill authorized him to declare the order erroneous under the Act of March 16, 1869, 14 Stat., 214, he required its amendment “in conformity with his opinion,” and decreed a restitution and delivery of the premises to the plaintiff with the muniments of title therefor, on their returning to the defendant the purchase money in United States currency, in the proportion which it bore in value to Confederate money at the date of the sale.

On discovering, by a consideration of the plea filed to the said amendment, that he had committed error in holding that the provisions of the said Act applied to the case before him, he vacated his order for amendment, leaving in force his decretal order which in effect sets aside the sale by the Master, and we are to infer from the argument here, that it rested on the following propositions :

First. That the children (the plaintiffs) were not properly parties to the petition of Joseph A. Winthrop and Arthur G. Rose, filed on the 11th February, 1859; and, therefore, not estopped by the order made under it; and, second, That the sale was irregular, 'unwarranted by the orders in’the cause, and, therefore, void.

We do not think it of consequence to determine what interest the children of Thomas S. Bulow, who are the plaintiffs here, took under the will of their grandfather, John Joachim Bulow, in the Long Savannah lauds. Whether the legal title vested in them by the force of the devise, or whether the use not being executed, it remained in the said Winthrop and Rose as their trustees, they had at least such a beneficial interest in the estate, as could not be disposed of by the Court through any proceedings to which they were not parties. “ Upon the general principles of Courts of Equity, there would be an impropriety in binding either the legal or the equitable claimants unless they were fully represented and permitted to assert their rights before the Court; and, if not bound, the decree would not be final on the matter litigated.” — Story Eq., § 208. It is, however, worthy of notice and regard, that in the cause in which the order for sale was made, the petitioners were recognized by the Court as “trustees.” Not only are they so styled in the petition, and in the report of the Master, but, in the order of Chancellor Wardlaw, of 15tli March, 1850, the proceeds of the sale are directed “ to be invested in the name of Joseph A. Winthrop and Arthur G. Rose, trustees for the infants, Thomas Lionel Bulow and J. Charles Bulow, as devisees under the will of their grandfather, the said John Joachim Bulow.” It would appear from this that the judicial construction of the words of the will as to the interests of the petitioners recognized the legal right in them, while the beneficial use was in the children.

On the 13th of March, 1860, the Master reported the sale of one hundred and seventy negroes under the order of March 15, 1859, and “ that he had paid to Joseph A. Winthrop $52,520, and he had, under his direction, invested the sum in city 6 per cent, stock, in the name of himself and Arthur G. Rose, Trustees of Thomas L. and J. Charles Bulow, as directed by the decree.” On the same day, the order was confirmed by Chancellor Inglis. On November 6, 1860, a detailed report of all the sales was made, and a payment of $106,201.02 in cash, stocks, and so forth “to the trustees,” and this report was confirmed by Chancellor Carroll as soon as presented. •

Under the bill filed on 26th of March, 1866, by the said Thomas Lionel Bulo-w against A. G. Rose (survivor of the said Winthrop) and the said John Charles Bulow, among other matters, for an account of the rents and profits of the said plantation, the fact of the sale came to the knowledge of the parties by the report of the Master on the 13th day of March, 1867, and on the 16th day of the same month it was adjudged in an order, manifestly taken by counsel in the interests of the plaintiffs here, “ that the said Arthur G. Rose had fully accounted as executor and trustee under the will of the said John Joachim Bulow, and that he be absolutely acquitted, &c., from any further account, &c., as executor or trustee, saving, and so forth.” It would thus appear that until the filing of the bill which was the origin of the proceedings now before us, that whenever the said Wiuthrop and Rose were before the Court connected with the said devise, the representative character which they assumed as trustees was recognized.

If Chancellor Wardlaw granted the order on the motion of the petitioners, because he regarded the legal title to the property as in them, and if he therein erred, his error of judgment would constitute no ground for now holding the order void. If the Court had jurisdiction over the subject-matter and the parties, and all who were to be affected by its judgment were before it as parties, then its order is legal, binding and final.

It is not disputed that the Court of Chancery has the power to sell and convey the estate of an infant. However doubtful it may at one time have been considered, “it is now too firmly established to be shaken.”—Bulow vs. Buckner, Rich. Eq. Cas., 401. In fact, the authority has not been questioned in the case before us. The exercise of this jurisdiction, through the process of petition, however originating, has been sanctioned and confirmed by long established practice; and the right of the Court in this respect is no more to be disputed than its right to order the sale of property for investment under the more expensive procedure, by bill. Whether Winthrop and Rose are to be regarded as seized of the legal estate, or only as executors of the will, holding possession for the benefit' of the infants, and either as such executors, or through Winthrop, as guardian, in the control aud direction of the property, they were the parties petitioners, and it was for the Court to determine, not only as to the propriety of the prayer which they submitted, but whether, on a proceeding to which alone they were parties, the relief sought could be obtained. It appeared that, on considering the petition, the Chancellor ivas of opinion that the children were proper and necessary parties. He, accordingly, referred it to the Master “ to assign a guardian ad litem to the infants, Thomas Leonel Bulow and John Charles Bulow, to appear to this petition ;” and under the authority of the order, their mother, Mrs. Caroline Bulow, at their selection, was appointed. The required formalities in such cases were complied with. The petition was referred to the Master, who reported on the facts, and recommended a sale of the negroes and land as manifestly for the interest of the children. In this opinion, according to the report, the guardian ad litem concurred. It remains now to be considered whether these infants were parties to the proceeding, and, therefore, estopped from averring against the validity of the judgment rendered upon it.

What is the object to be secured by assigning a guardian ad litem to infants interested in a matter before the Court ? It is identical with that to be accomplished by the service of a subpoena on an infant in the nurse’s arms. It is to attract the attention of its friends, that a due regard may be had to its rights, and that the mind of the Court may be directed to them. Is this end in any way more effectually attained by the filing of a formal answer on the part of the guardian ad litem, than by bringing to the notice of the Court the facts upon which its judgment is to be exercised in disposing of the rights.and interests of the infants involved in the matter before it?

An infant before the Court stands in the same relation to it as does one of its own wards. “ Whenever a suit is instituted in the Court of Chancery relative to the person or property of an infant, although he is not under any general guardian, appointed by the Court, he is treated as a ward of the Court, and as being under its special cognizance and protection.”—Story Eq., § 1352.

Whenever the rights of others are sought to be enforced against an infant by a judicial proceeding, the Court first attempts to secure him full means of defence by the appointment of a guardian ad litem, who occupies the same relation (if not a more immediate and direct one) to the infant, as the prochein ami does, who is appointed to protect the interests of a minor seeking redress against others for a violation of his rights. Parke, B., says, in Morgan, vs. Thorn, 7 M. & W., 408: “ It is perfectly clear that every proehein ami is to be considered as an officer of the Court, specially appointed by it to look after the interests of the infant, on whom the judgment is consequently binding, and who cannot be allowed, on attaining his age, to commence fresh proceedings founded on the same cause of action.”

The argument of the counsel for the appellee, exhibiting much research and learning, has been conclusive to shew that minors cannot be affected by judicial proceedings, unless it appears that they were parties before the Court. But what requisitions must be complied with to make them parties has not been prescribed in any of the cases referred to. The answer on their behalf by a person not appointed guardian ad litem, will be disregarded.—Bailey vs. Boyce, 5 Rich. Eq., 197. So it would appear that though brought into Court by service, and an answer filed by a party not guardian ad litem, the infant would not be bound. Is it not apparent that the Court regarded the appointment of some one authorized and in duty required to look after the interests of the minor, as indispensable to the validity of its decree against him ? We are not to be understood as laying down any general rule as to what may be necessary to bind an infant as a party defendant to a cause. Our inquiry is limited to the question, whether these infants were so parties to the petition that they are precluded from now averring against the judgment pronounced under it.

The petition claimed no rights against the infants. It created no contest putting them in an antagonistic position to the petitioner. Its whole scope was to present to the view of the Court the condition of the property, and, from the experience of the past, the likelihood that it would not be productive or remunerative if continued as a planting investment. It prayed that “ the case of the infants, as well as of the petitioners,” might be taken into consideration, and the sale of the whole, or a part of the property, sanctioned. It at once occurred to the Chancellor, that with the parties then alone before him, he could not consider the subject-matter of the petition, as it involved rights in which the grand-children of the devisor were interested. The object of the order was to make them parties, and to bring them before the Court by the appointment of a guardian ad litem. Recognizing them as before him, he ordered the reference; required “ a report upon the facts,” to ascertain “ whether it is for the advantage of the infants that the real and personal estate referred to in the petition be sold.” When it appears by the fact of the appointment of such guardian, her acceptance and concurrence in the recommendation of the Master, that the Chancellor passed upon the petition with all proper reference and security to the rights and interests of the infants, is it to be said that there is still something more which is necessary to bind them ? The barren form of the service of a subpoena, the purpose of which the infants are supposed not to understand, and the answer of the guardian ad litem which does not bind them, these, it is alleged, are still necessary to give validity to the order. As was said by Chancellor Kent, in Mills vs. Dennis, 3 John. Ch., 368, “ a decree cannot safely be obtained against an infant upon the mere fact of taking the bill pro confesso, or upon an answer in form by the guardian ad litem.” The answer in such eases generally is that the infant knows nothing of the matter, and, therefore, neither admits nor denies the charges, but leaves the plaintiff to prove them as he shall be advised, and throws himself on the protection of the Court. If we stretch the obligation of purchasers at judicial sales beyond the mere duty of ascertaining whether the Court had jurisdiction in the matter in which it claimed to act, and whether all the parties to be bound are before it, in the language of Lord Redesdale in Bennett vs. Hamill, 2 S. and L., 577, “ we shall introduce doubt on sales under the authority of the Court, which would be highly mischievous.” Something is certainly due to the purchasers at these sales from the confidence which the public reposes in the judgments of the Courts of the country. They must be upheld, at least so far as they operate on the title of parties to the proceeding, and if the title, though of infants, is thus alienated by the sale, the conveyance of the officers of the Court operates as an estoppel to the same extent, and in the same manner, that the proper deed of an adult conveying his title would bar .him from asserting it against his grantee. Regarding the plaintiffs as parties to the petition, and bound by the judgment of the .Court directing the sale, we are next to consider the further ground upon which it was endeavored to sustain the decree of the Circuit Judge, now under review.. That proceeds upon the affirmation “ that the sale was irregular, unwarranted and void.”

The order was made 15th March, 1859, and it directed the Master “ to sell, at such time and place, and on such terms, as he, with the advice of the trustees, might approve.” It did not require the Master to consult with the guardian ad litem, as to the time or condition of the sale, and his failure to do so could not be regarded even as an irregularity.

On 13th March, 1860, an extension was ordered, and again on the 5th November, 1860. On 3rd June, 1862, without any intermediate proceeding, the sale was had.

It is urged that the order contemplated the payment of the purchase money in gold and silver coin or its equivalent, and the sale being made at a time when such currency was expelled from the country by the existence of the war, and the acceptance of payment in a depreciated medium, so varied the conditions as to render it absolutely void.

It should not be forgotten that the question here is between these plaintiffs and the purchaser, not the plaintiffs and the Master. Whatever rights and equities they may have against him, cannot be interposed to the prejudice of the purchaser, if there was authority in the Master to make the sale. If it was an existing order of a Court having jurisdiction over the subject-matter, and the parties whose interests its judgment was intended to affect, no subsequent irregularity on the part of the officer charged with the sale can destroy the validity. No fraud is alleged against the purchaser, and no collusion with the Master. In addition to the careful consideration, of the propositions contended for on the part of the appellees, we have examined, with much attention, the authorities referred to on this point, in the argument of a case at this Term, depending to a large extent upon the application of the same rules and principles by which this must be governed, and find nothing in them to sustain the position, that the change made in the order, by selling at a time when a depreciated currency was in existence, so affected it as to render it void. U. S. vs. Slade, 2 Mason, 75, turned upon the fact that the statutory power on which alone the title depended, was not apparent on the record, and further, that the appraisement was concurred in only by two of the appraisers, and the non-concurrence of the third not explained. Thatcher vs. Powell, 6 Wheaton, 119, proceeded upon the ground that where a Court exercises extraordinary powers under a special Statute, the course it directs must be pursued, and the facts that give it jurisdiction must appear on the record, otherwise the proceedings are void, because non coram judice. Bigelow vs. Forrest, 9 Wall., 351, held that the decree of the Court only operated on and extended to the interest of Forrest in the property for life — that the Court had no power to order a sale of the fee simple; and it was the duty of the purchaser to look at the decree “ and they were bound to know its legal effect.” The language of Chancellor Wardlaw in Whiteman vs. Gray, 10 Rich. Eq., 531, may well be repeated in this connection : “ The action of the Court never proposed to bind parties beyond the legitimate interpretation of its orders and decrees, and not at all to conclude the titles of third persons who are not parties.”

That the order contemplated such currency as could be readily convertible into coin, might be admitted; and yet the sale, as against the purchaser, would not be void, because the payment required was received by the Master in a depreciated currency, which, at the time, was the only circulating medium prevailing in the country.

The principles sustained by the Court in Ward vs. Smith, 7 Wallace, 447, are restrained in their application to the case before us by the decision of the Appeal Court in McPherson vs. Gray, 13 Rich. Eq., 130. The bill there sought to annul a settlement made between Mr. Gray, the Master, and the purchaser of the bonds given for the purchase money of the lands sold by the order of the Court, and to set up the bonds and mortgage, or make the Master liable, on the ground that the bonds were executed when gold or silver coin was the only currency, while their payment was received in Confederate Treasury notes. The Court, so far from enforcing the instruments as existing obligations, held “ that the Act of the Master was entitled to its sanction,” and did not even make him liable for the difference between the value of the Confederate money he accepted and United States currency. We are not prepared to say that the case, in all its aspects and bearings, meets our concurrence, but, standing as an authority not sought to be impugned by the mode authorized by the Court, we must so regard and respect it. If the purchaser there was entitled to hold, under all the circumstances which attended the reception of the money as payment of the mortgage, it is in vain to say that the title of the purchaser here is void, because the Master received the purchase money in a currency different from and less valued than that in circulation at the time that the order for sale was made.

Although the advertising of sales by Sheriffs is regulated and fixed by statute, there is no Act of the Legislature or rule of Court prescribing what public notice shall precede a sale made by the Master or Commissioner under an order of the Court of Equity. Where the order requires notice for a certain time, it forms one of the conditions on which the authority is to attach. The manner of the execution of the power is then fixed by law, and if defectively performed, cannot be relieved by a Court of Equity. It has been the practice, in analogy to Sheriff’s sales of real estate, to pursue the notice there required. In the absence of all Statute requisition, a failure to do so cannot vitiate the sale unless fraud has been practiced, or some design intended against the interest of those on whose behalf the sale is ordered.

Neither can the failure to renew the order within a year and a day be held to affect the sale. The order of the Court, of 15th March, 1859, extended by that of 5th November, 1860, stood as the direction and authority of the Court. The principle which forbids procedure at law, after a year and a day, has no application to the Court of Equity. There the presumption on which it is formed can seldom exist. To admit the application to the practice in the Courts of Equity of this State, would be in singular inconsistency with the construction which was given in Jeanerett vs. Bedford, Rich. Eq. Cases, 470, to the Acts of 1784, 1789 and 1810. In regard to suits in that jurisdiction, “under this Act,” said the Court, “ no doubt a defendant may have a bill dismissed at the end of three years after a decretal order made, whatever cause may be shown for a further continuance. But the uniform practice has shown that the cause is not ipso facto out of Court if such motion be not made.” The Chancellor, delivering the opinion of the Court in Bennett vs. Calhoun Association, 9 Rich. Eq., 178, says: “This Court is well satisfied with the observation of Chancellor Harper, in Jeanerett vs. Bedford, that, according to the uniform practice of the Court, the cause is not regarded as ipso facto out of Court, although these directions may not have been strictly observed.”

It is further contended that the 4th Section of the Act of December 21st, 1861, 13 Stat., 19, commonly known as the Stay Law, suspended the operation of the order for sale until renewed, and as it never was renewed, that the sale under it was utterly null and void. It is not proposed to examine, by any close investigation, whether the said Section of the Act is within the legitimate power of the Legislature. If its design had been to establish a new rule or direction for the government of the Court in future orders for the sale of property, it would not have been an encroachment on the exclusive powers of the judicial department of the government. If, however, the practical result of its operation is to annex new conditions to the orders of the Court already pronounced, and thereby change or modify its judgment as therein declared and expressed, it is an assumption of the powers which pertain to another and independent department of the government. Neither is it proposed to inquire, conceding that one part of an Act may be unconstitutional, and yet all the other portions of it not obnoxious to that objection, whether the 4th Section is not to be taken in connection with the first as forming part of a system by which final decrees in equity, as well as final process at law, were to be inoperative unless permitted to have effect through renewal by a Judge of the Court which had ordered it, and thus assuming in such enactment apower not properly within the competence of legislative authority.

The Act stays the sale authorized by the order until the same shall be renewed by one of the Judges of the Court which originally granted it.

The judgment, then, of the Chancellor which, at the passage of the Act, -was final and conclusive, becomes inoperative until renewed by another Chancellor. If not renewed, the object which the judgment was to accomplish can never be obtained, and its whole purpose is defeated.

"We cannot regard the Section as of such mandatory force as to render the sale made in disregard of its requirements void, and conferring no rights on the purchaser. If there were no irregularities in the sale amounting to defects, while the Master may be subject to the animadversion of the Court, and liable to the plaintiffs for any loss which ensued from his neglect of observances intended for their benefit and protection, as against the purchaser, the sale cannot be decreed void.

The interference of the Court is invoked on behalf of these plaintiffs, who, it is said, were unable to protect themselves on the application under the petition, by reason of their infancy, and its power is claimed to set aside the title of the purchaser both on principles of law and equity. All the propositions of law on which they rested have been solved against them, and the general aspect of their case does not recommend it so favorably to considerations of equity that by the application of the rules which govern its administration, the prayer of their bill can be favorably answered.

Through the order for the sale, which they aver was not binding on them, the negroes which they would otherwise have lost, were converted into stocks and securities, of which they have received the benefit, and it must be held to have been recognized by them as valid, by the order of the 16th March, 1867, in the case of Thos. L. Bulow vs. Rose and John Charles Bulow, which directed the payment of the said stocks and securities for the use and benefit of these very plaintiffs—nay, on the same day that the Long Savannah land was sold, twenty-three negroes were also disposed of by the Master, and the proceeds paid over to Winthrop and Rose, as trustees. These proceeds were included in the funds for which Rose was to account by said order, which also declares that he had accounted, as executor and trustee, under the will of John Joachim Bulow, and on “paying, assigning and transfering the funds, stocks, bonds and securities, in his hands, as he was directed, that he be absolutely acquitted, exonerated and discharged from any further account as executor aforesaid,” saving and reserving the rights and equities to these plaintiffs to test the sale of the Long Savannah plantation, or the rights of the purchaser thereto, the proceeds of which sale had been paid by the Master to Rose and Winthrop, on the 16th October, 1862, and by the said order were directed to be delivered to the Master “to remain until the further order of the Court.” Whether Winthrop and Rose were express trustees under the will, or whether, as intermeddling with the property, they became, as to the children, voluntary trustees, by the order of the Court they, with the Master, were to fix the time, place and terms of the sale. The plaintiffs, so far from asserting any claim against the said Winthrop and Rose, by reason of their action in the matter of the sale of the land actually by the order above referred to, discharge the said Rose, who was the survivor of Winthrop and Rose, and declare that he was not to be “held liable for any miscarriage in relation thereto.” If they have rights against the said parties they have surrendered them by the discharge. If they have any against the Master, they have not pursued them, while they seek redress of the purchaser against whom they aver no fraud or wrong design, and who certainly is as innocent as either of the parties who fixed the time, place and terms of the sale.

It appears difficult to reconcile the claim now preferred with any of the recognized principles admitted by Courts of Equity, even in favor of infants.

It is ordered and adjudged that the motion be granted, and the bill dismissed.

Willard, A. J., and Wright, A. J., concurred.