The Opinion of the Court was delivered by
Purple, J.
On the 2d day of October, 1841, Norris, the defendant ifi error, filed his bill in the La Salle Circuit Court, against the plaintiffs in error, to foreclose a mortgage executed by James G. Armstrong in his lifetime, upon a lot in the town of Ottawa in said county. Among other things, the bill alleges that there was a mistake made in the description of the lot, by the omission of the words, “in the town of Ottawa and county of La Salle,” which were intended to have been inserted as part of the description of the mortgaged premises, and also, that by mistake, the said James G. Armstrong, at the time he signed said mortgage, omitted, contrary to the intention of the parties, to affix his seal to the mortgage. It is also shown by the bill, that John Armstrong is the son of said James G. Armstrong, and that he was a minor at the time of the filing of the bill. The prayer of the bill asks, that the mistakes in the making and execution of the mortgage may be be corrected, and amended so as to conform to the original agreement and intention of the parties, and, that the same, in default of the payment of the money due thereon, may be foreclosed. Process was duly served on all the defendants in the Court below,
James J. Holt was appointed guardian ad litem of John Armstrong, and filed the usual answer, that he had no knowledge of the matters charged in the bill of complaint, and requesting that the rights of the said minor might be secured to him.
McCIay and Mrs. Armstrong filed a plea in abatement, which, upon hearing, was adjudged insufficient by the Court, and making no farther answer or defence, the bill was taken as confessed against them. Whereupon, without farther evidence appearing in the record, other than a recital in the decree, that “the Court having heard the proofs and allegations of the parties,” a decree was made and entered, directing the mortgage to be amended and corrected as prayed for *in the bill; that the sum due by the mortgage, should be paid on or before the first day of the next term of the Court; and, that in default of such payment, the said plaintiffs in error should be barred and foreclosed of all equity of redemption in and to the mortgaged premises.
Several errors are assigned as causes for a reversal of this decree, but the one principally relied upon is, that it is not apparent from the record, that there was any evidence in the Circuit Court to sustain the decree as against the minor, John Armstrong.'
Preliminary to the discussion, of this main question, it will be proper to notice some objections taken by the counsel for the defendant upon the argument. He contends, first, that an infant is not entitled to a writ of error in a Chancery pro-, ceeding; that his remedy when he arrives at his majority is, by application to the Circuit Court, in ordinary cases to be let in to make- defence; and second, that in cases of foreclosure, he is not entitled to his day in Court.
At a remote period of the history of English jurisprudence, when suits were prosecuted against an infant, relating to real estate which had descended to him, he was permitted to resort to his parol demurrer, which is defined to be, “a plea or privilege formerly allowed an infant sued concerning lands which came to him by descent; whereupon the Court gave judgment, quod logúela predicta remaneat quousque; the infant attained the age of twenty one years. And when the age was granted on parol demurrer, which might happen on the suggestion of either party, the writ did not abate, but the plea was put sine die until the infant was of full age, and then there was a re-summons.” 3 Tomlin’s Law Dic. 64.
Experience having shown that the practice of allowing parol demurrers, was attended with much inconvenience and vexatious delays, in process of time a different rule obtained, and instead of the parol demurrer, which had been formerly interposed in behalf of infants, in Chancery proceedings against" them affecting their interests in lands, upon the proper proof being made, a decree was immediately entered up against them to .be binding, unless they should within six months after they should have attained the age of twenty one years, (being served with process for that purpose,) show unto the Court good cause against the said decree.
All the authorities which have been referred to, and others which have been examined, both English and American, maintain the principle that in suits and proceedings against infants, at law and in Chancery, whereby they are divested of their lands, (except in cases otherwise provided for by special statutes,) they are entitled to their day in Court. The case referred to in 3 Vesey, 317, is not in conflict with this principle. It is decided there, that <5an infant may be foreclosed. You can have your decree against him. He can do nothing but show error. He is foreclosed to all intents. You may go to market with it, (i. e. the estate) and the purchaser is only liable to be overhauled in the account.39
The distinction taken by, and which runs through all the authorities cited and examined is this: In cases of foreclosure, whether by sale or otherwise, the infant on arriving at full age, on showing cause, can only allege error on the face of the decree; whereas, in other cases, he will be permitted to lile a new answer, and litigate the merits of the case. To review the decisions upon this question, inasmuch as they appear to be all one way, would be unnecessary. A simple reference to them will be sufficient. 18 Vesey, 83; 21 do, 233; 9 Cowen, 337; 4 Monroe, 225; 3 Johns. Ch. R. 367; Kelsell v.’ Kelsell, 8 Eng. Ch. R. 58; 1 Smith’s Ch. Pr. 419; 1 Barb. do. 34, 149; Harris v. Youman, 1 Hoff. do. 178. Such has been, and still is the doctrine of the English, and many of the American Courts. Whether this rule obtains ira this State, or is changed or repealed by the second section of the Act concerning “Fraudulent Devises,” approved February 28,1833, (Revised Laws of 1833, page 315,) is not necessary to be determined in this case, and is a matter of such grave and serious import, that without further reflection and examination, we are unwilling to express any opinion upon it. We do not, however, entertain any doubt, (whatever may have been the prevailing practice in England and the United States,) that an infant may, if he sees proper to do so, prosecute a writ of error in the Supreme Court of this State. So that, in the view we take of this case, it is immaterial whether it is to be intended by the record that John Armstrong is, or is not now, a minor. If an infant sues out a writ of error, he should do so by his next friend; but no objection could be taken against his proceeding in his own name, after the party has joined in error. The infant’s disability is waived by such proceeding.
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The Opinion of the Court was delivered by
Purple, J.
On the 2d day of October, 1841, Norris, the defendant ifi error, filed his bill in the La Salle Circuit Court, against the plaintiffs in error, to foreclose a mortgage executed by James G. Armstrong in his lifetime, upon a lot in the town of Ottawa in said county. Among other things, the bill alleges that there was a mistake made in the description of the lot, by the omission of the words, “in the town of Ottawa and county of La Salle,” which were intended to have been inserted as part of the description of the mortgaged premises, and also, that by mistake, the said James G. Armstrong, at the time he signed said mortgage, omitted, contrary to the intention of the parties, to affix his seal to the mortgage. It is also shown by the bill, that John Armstrong is the son of said James G. Armstrong, and that he was a minor at the time of the filing of the bill. The prayer of the bill asks, that the mistakes in the making and execution of the mortgage may be be corrected, and amended so as to conform to the original agreement and intention of the parties, and, that the same, in default of the payment of the money due thereon, may be foreclosed. Process was duly served on all the defendants in the Court below,
James J. Holt was appointed guardian ad litem of John Armstrong, and filed the usual answer, that he had no knowledge of the matters charged in the bill of complaint, and requesting that the rights of the said minor might be secured to him.
McCIay and Mrs. Armstrong filed a plea in abatement, which, upon hearing, was adjudged insufficient by the Court, and making no farther answer or defence, the bill was taken as confessed against them. Whereupon, without farther evidence appearing in the record, other than a recital in the decree, that “the Court having heard the proofs and allegations of the parties,” a decree was made and entered, directing the mortgage to be amended and corrected as prayed for *in the bill; that the sum due by the mortgage, should be paid on or before the first day of the next term of the Court; and, that in default of such payment, the said plaintiffs in error should be barred and foreclosed of all equity of redemption in and to the mortgaged premises.
Several errors are assigned as causes for a reversal of this decree, but the one principally relied upon is, that it is not apparent from the record, that there was any evidence in the Circuit Court to sustain the decree as against the minor, John Armstrong.'
Preliminary to the discussion, of this main question, it will be proper to notice some objections taken by the counsel for the defendant upon the argument. He contends, first, that an infant is not entitled to a writ of error in a Chancery pro-, ceeding; that his remedy when he arrives at his majority is, by application to the Circuit Court, in ordinary cases to be let in to make- defence; and second, that in cases of foreclosure, he is not entitled to his day in Court.
At a remote period of the history of English jurisprudence, when suits were prosecuted against an infant, relating to real estate which had descended to him, he was permitted to resort to his parol demurrer, which is defined to be, “a plea or privilege formerly allowed an infant sued concerning lands which came to him by descent; whereupon the Court gave judgment, quod logúela predicta remaneat quousque; the infant attained the age of twenty one years. And when the age was granted on parol demurrer, which might happen on the suggestion of either party, the writ did not abate, but the plea was put sine die until the infant was of full age, and then there was a re-summons.” 3 Tomlin’s Law Dic. 64.
Experience having shown that the practice of allowing parol demurrers, was attended with much inconvenience and vexatious delays, in process of time a different rule obtained, and instead of the parol demurrer, which had been formerly interposed in behalf of infants, in Chancery proceedings against" them affecting their interests in lands, upon the proper proof being made, a decree was immediately entered up against them to .be binding, unless they should within six months after they should have attained the age of twenty one years, (being served with process for that purpose,) show unto the Court good cause against the said decree.
All the authorities which have been referred to, and others which have been examined, both English and American, maintain the principle that in suits and proceedings against infants, at law and in Chancery, whereby they are divested of their lands, (except in cases otherwise provided for by special statutes,) they are entitled to their day in Court. The case referred to in 3 Vesey, 317, is not in conflict with this principle. It is decided there, that <5an infant may be foreclosed. You can have your decree against him. He can do nothing but show error. He is foreclosed to all intents. You may go to market with it, (i. e. the estate) and the purchaser is only liable to be overhauled in the account.39
The distinction taken by, and which runs through all the authorities cited and examined is this: In cases of foreclosure, whether by sale or otherwise, the infant on arriving at full age, on showing cause, can only allege error on the face of the decree; whereas, in other cases, he will be permitted to lile a new answer, and litigate the merits of the case. To review the decisions upon this question, inasmuch as they appear to be all one way, would be unnecessary. A simple reference to them will be sufficient. 18 Vesey, 83; 21 do, 233; 9 Cowen, 337; 4 Monroe, 225; 3 Johns. Ch. R. 367; Kelsell v.’ Kelsell, 8 Eng. Ch. R. 58; 1 Smith’s Ch. Pr. 419; 1 Barb. do. 34, 149; Harris v. Youman, 1 Hoff. do. 178. Such has been, and still is the doctrine of the English, and many of the American Courts. Whether this rule obtains ira this State, or is changed or repealed by the second section of the Act concerning “Fraudulent Devises,” approved February 28,1833, (Revised Laws of 1833, page 315,) is not necessary to be determined in this case, and is a matter of such grave and serious import, that without further reflection and examination, we are unwilling to express any opinion upon it. We do not, however, entertain any doubt, (whatever may have been the prevailing practice in England and the United States,) that an infant may, if he sees proper to do so, prosecute a writ of error in the Supreme Court of this State. So that, in the view we take of this case, it is immaterial whether it is to be intended by the record that John Armstrong is, or is not now, a minor. If an infant sues out a writ of error, he should do so by his next friend; but no objection could be taken against his proceeding in his own name, after the party has joined in error. The infant’s disability is waived by such proceeding. Our opinion of the right of any person, whether infant or adult, to prosecute a writ of error in this' Court, is founded upon the fact, that it is a “writ of right,” and lies in all cases, unless prohibited by some statute or inflexible rule of law; and also upon the statute of our State, passed July 1, 1829, entitled “An Act regulo,ting the Supreme and Circuit Courts”, by the second section whereof, it is provided: “The said Supreme Court shall exercise appellate jurisdiction only, ( except as hereinafter exce-pted,) and shall have final.and conclusive jurisdiction of all matters of appeal, error or complaints, from the judgment or decrees of any of the Circuit Courts of this State, and from such other inferior Courts as may hereafter be established by law, in all matters of law and equity, wherein the rules of law or principles of equity, appear from the files, records, or exhibits of any such Court, to have been erroneously adjudged and determined.” “And their judgments, decrees and determinations, shall be final and conclusive on all the parties concerned.” Revised Laws of 1833, pages 147-8.
This statute is broad and comprehensive in its terms, and seems designed to embrace every case in which an erroneous decree or judgment may have been rendered in the Circuit Court,
Such a construction of this law cannot operate to the prejudice of any parties. For, if an infant sues out a writ of error, and a decree in this Court is passed against him, such decree would be conclusive as well against him, as'it would have been had he attained full age, both under the provisions of the statute before recited, and upon the principle that he is a plaintiff in the writ of error, and as such, concluded by the judgment or decree. Williamson’s heirs v. Johnston & Nash’s heirs, 4 Monroe, 255.
It- must be apparent, then, that it is most beneficial to the opposite party, that an infant should prosecute his writ of error at the earliest period after any error in the record may have been discovered, without waiting until he arrives at full age. For it cannot be disputed, that when his minority had ceased, he would, by the English practice, in a case like the present, be entitled to show error on the face of the decree, the effect of which would be to reverse the judgment in the same or a similar manner, and with like effect upon the interests of the parties, as would result from a reversal in this Court.
I proceed to the inquiry, whether the decree rendered in this case is sustained by the facts appearing upon the record. In the determination of this question, there is an important principle of law, and rule of practice necessarily involved. Of law, as to whether the answer of a guardian ad litem of an infant defendant can in any event affect or conclude the the rights of such infant; and of practice, as to the method of proof in Chancery cases., and whether it must be shown by evidence in the record that the decree made was properly rendered.
With regard to the method of taking testimony in Chancery cases, the general rule is, that it is not to be done viva voce, in open Court, as at law, but written questions are to-be put to the witnesses, either by an officer of the Court, or by some person duly authorised; and the answers are taken down in' writing by such persons. 1 Smith’s Ch. Pr. 339; 1 Barb. do. 309-10. The only exceptions to this general rule are two: first, proof of exhibits in, or attached to and made part of th'e complainant’s bill, or the defendant’s answer; and second, where, under our statute, the Court has authority for want of plea or answer, to render a decree pro confesso against the defendant. In either of these cases, evidence by parol, may be heard by the Chancellor upon the trial of the cause. In the first case mentioned, the evidence is confined to the proof of exhibits, and will scarcely ever be received when anything but handwriting is to be proved. This kind of testimony is applicable to ancient records and writings, office copies of records, deeds, bonds, instruments in writing to which there may be subscribing witnesses, promissory notes, bills of exchange, letters, receipts, &c., all which, when made exhibits, may be proved at the hearing. But this cannot be permitted when something more than bare proof of handwriting is required. If the evidence is of a character to admit of cross-examination, or requires other testimony to be given to entitle it to be received, such as proof of the death or absence of a subscribing witness before his handwriting can be pfoved; or if a document is impeached by the defendant’s answer, the testimony, if offered at the hearing, will be rejected. 1 Barbour’s Ch. Pr. 309— 10; Holdridge v. Bailey, 4 Scam. 126;-1 Smith’s Ch. Pr. 339.
Such, we believe, has been the usage and practice of Courts of Equity from the earliest period of their establishment down to the present time; and this usage and practice, when not otherwise prescribed in our Chancery Act, is made the rule of proceeding in the Courts of Chancery in this State. 118, § 1. Wherever, by the rules of proceeding in this State, as prescribed by our statute, a bill may be taken for confessed against the defendants, which occurs in cases of default in filing plea or answer, the Court may hear oral testimony of witnesses, or in, its discretion may examine the complainant under oath, in which cases, the evidence on which the decree is founded need not be spread upon the record.
Upon the other question, it is entirely clear, that the answer of a guardian ad litem, even if it shall admit the truth of the charges in the complainant’s bill, can in no case affect the infant’s rights; and with respect to him, all allegations must be proved with the same strictness, as if the answer had interposed a direct and positive denial of their truth. No default or decree pro confesso can be entered against him. “A decree upon an answer of a guardian ad litem, will not bind an infant. He can open it, or set it aside when he comes of age. No laches can be imputed to him, and no valid decree can be awarded against him merely by default. The plaintiff, in such case, ought to prove his demand, either in Court or before the Master, and the infant is usually entitled to a day to show cause. When he comes of age, he is to be served with process of subpoena for that purpose; and then he is not entitled to redeem, but only to show error in the decree.” scThe plaintiff must prove his debt before the Master in the same manner as if nothing had been admitted by the answer, and the Master must report such proof, &c.” 3 Johns. Ch. R. 367; see, also, 3 Powell on Mort. 980; U. S. Bank v. Ritchie, 8 Peters, 144; 1 Barb. Ch. Pr. 149; 1 Smith’s do. 259.
If it should be asked whether it is deemed indispensable in all cases, where infants are made defendants in Chancery proceedings, that the complainant must go through with all the formal requirements of the statute, by giving notice to the infant or his guardian, the length of time required, and by taking depositions, to be read and filed in the cause, we answer that we think not. A proper and convenient practice is, for the Court to refer the matter which requires to be proved to the Master in Chancery, that he'may take the evidence and report the facts to the Court for its final determination. Or perhaps the Court in its discretion, the guardian ad litem of the infant being present, and being permitted to cross-examine the witnesses, might hear the testimony in open Court, and cause the same to be reduced to writing, and made part of the record. The inconvenience of this practice, however, if allowable, ought, in the judgment of the Court, to operate against its adoption.
As to the subjects which may properly be referred to a Master, no general rule can be laid down. It is stated in 1 Barb. Ch. Pr. 468, and sustained by numerous authorities there referred to, that “there is no question of law or equity, or disputed fact or facts, which a Master may not have occasion to decide upon, or respecting which he may not be called upon to report his opinion to the Court.”
When any question of fact has been so referred, the Master’s duty is to appoint a day for the examination of witnesses before him, of which the parties should receive due notice. The witnesses may be examined viva voce, or upon interrogatories, and the evidence is taken down and preserved by the Master, so that the same may, if necessary, be used by the Court. 1 Barb. Ch. Pr. 502; 2 Smith’s do. 147. The Master is not required to report the evidence nor the circumstances to the Court, and leave the Court to draw conclusions; but he is to report facts, and conclusions of his own, unless under special circumstances a question of law is involved, upon which it is proper that the opinion of the Court should be obtained. 1 Barb. Ch, Pr. 544; 2 Smith’s do. 161.
After 'the Master’s report has been made out, if either party is dissatisfied therewith, it is usual to file objections to the same before the Master, before the report is returned into Court; the object of which, is, to give the Master an opportunity to consider and re-examine the same, and if he deems it in any respect erroneous or improper, to correct it. If the objections are not sustained, and the Master adheres to his report, it is returned into Court, when the party objecting may file exceptions, upon the hearing of which the whole evidence is brought forward, and passes in review before the Court. 2 Smith’s Ch. Pr. 166-7-8; 1 Barb. do. 546. Thus far these questions have been discussed, partly for the reason that we considered the principles not inapplicable to the case at bar, and partly because it is apprehended that in cases like the present, a laxity in practice has been freqnently indulged, which is unwarranted in law, and highly dangerous to the rights of infants, of whose estates and interests the Courts of Chancery are nominally, and should be practically, guardians.
It remains only to apply these principles to the facts presented in this record to determine whether this decree shall stand. And we feel no hesitation in saving that the decree is unwarranted by any evidence before us. The bill contains aii allegation of a mistake in the description of the mortgaged property, by an omission of the words, t6in the town of Ottawa and county of La Salle.503 Without the correction of this mistake, the description was unmeaning, and-applied as well to any other lot, as to that which has passed to the defendants in error under this decree. The Court had, in this case, no power to correct this mistake without evidence of its existence, and of the original intention of the parties at the time of the. execution of the mortgage. There is no such evidence in this record.
The decree of the Circuit Court is .reversed, and the cause remanded for further proceedings not inconsistent with this Opinion, the defendant in error to pay the costs in this Court.
Decree reversed.