Stockton, J.
An infant defendant is as much bound by a decree in equity against her, as a person of full age; therefore, if there be an absolute decree against a defendant [24]*24who is under age, she will not be permitted to dispute it, unless upon such grounds as an adult might have disputed it: as fraud, collusion, or error. To impeach the decree on the ground of fraud or collusion, she may proceed either by bill of review, or by original bill. To impeach it on the ground of error, she may proceed by original bill; and she is not obliged to wait for that pm-pose until she has arrived at the age of twenty-one. 1 Danl. Ch. Practice, 205. In ordinary cases, where an infant is allowed time after her arrival at the age of twenty-one years, to show cause against a decree, the decree, in such cases, is deemed complete ; but the infant has the time allowed to show cause against it. If no cause is shown within the time specified, the infant is bound. McPherson on Infants, 412; 1 Danl. Ch. Practice^ ch. 4, sec. 8.
After the infant comes of age, and before the decree is made absolute, she may, as a matterjjf course, obtain leave, on motion, to amend her answer, or to put in a new one. Stephenson v. Stephenson, 6 Paige, 358; James v. James, 4 Ib., 115. For, this permission to show cause against the decree, would be merely nugatory, if the infant were bound by the answer of the guardian. JBy the new answer, she may make a better defense, and support that defense by evidence ; she may examine witnesses anew, and may file a bill of discovery. McPherson on Infants, 415. An infant defendant wishing to make a new defense, must apply to the court as early as possible after attaining the age of twenty-one years ; for, if she is guilty of any laches, her application will be refused. Mason v. Debow, 1 Hayward, 178; 1 Danl. Ch. Practice, 216.
She may either impeach the decree on the ground of fraud or collusion between the plaintiff and her guardian, or she may show error in the decree. She may also show that she had grounds of defense, which were not before the court, or were not insisted on at the hearing; or that new matter has subsequently arisen, upon which the decree may be shown to be wrong. 1 Danl. Ch. Pr., ch. 4, [25]*25see. 8, 222. If an erroneous decree has -been obtained against the infant, and the error is not in the judgment of the court, but in the facts on which the judgment is founded —as where there has been fraud or collusion between the plaintiff and the guardian ad litem — or if there has been any deception, or any surprise upon the court, the infant may, either during her infancy or afterwards, investigate the decree by a bill of review, or by original bill; and this, although her ground of complaint against it is confined to error. The proceeding on which the decree against her has been founded, is treated as fraudulent — though this expression may not, in its ordinary acceptation, be applicable to the transaction; it being considered fraudulent to take advantage of the incompetency of the infant to defend herself. McPherson on Infants, 430, 431.
The bill of complaint, in this case, is not a.bill of review; but is an original bill to set aside the decree and sale of the lots in controversy, for fraud. The complainant does not ask to be allowed to put in a new answer in the suit of Miller ; nor to amend the answer put in for her by her guardian. But she complains that there was error in the decree rendered, and prays that the same may be reversed; and that the sale of the lots be set aside, and the deed made by the sheriff, cancelled. By her amended bill, she charges that the defense made for her by her guardian, was fraudulent in law; that the purchase of the lots by the said Grimes, and the deed to him by the sheriff, was, as against her, fraudulent and void. And she prays that, for fraud in the defense made by the guardian, the decree and sale be set aside, and that the defendant, Lahee, the present holder of the title derived from Grimes, the purchaser at sheriff’s sale, may be decreed to convey the said lots to the complainant.
The first objection urged by the complainant to the decree of the district court is, that it was made without any sufficient answer on her part, by the guardian appointed for her. It seems that two answers were put in by the guardian. In one, the guardian, averring that he. knows nothing of the [26]*26tl-uth of the allegations of the complainant’s bill, admits none of them to be true, and leaves the complainant to the proof. In the other answer, the guardian admits that judgment has been recovered, as alleged by said Miller, against said Eobert Ealston; that execution issued thereon, had been returned, “ no property foundthat said Ealston had no property out of which said judgment could be satisfied; that the said Mary TI. is the daughter of said Eobert Ealston ; and that the title of said lot, 239, A., is in the said infant. The other allegations of the bill are denied.
An infant is not bound by admissions made in his or her behalf, unless such admissions are for the benefit of the infant ; and where there is an infant defendant, and it is necessary, in order to entitle the plaintiff to the relief he prays, that certain facts should be before the court, such facts, although they might be the subject of admission on the part of adults, must be proved against the infant. There can be no valid decree against an infant, by default, nor on the answer of her guardian. Mills v. Dennis, 3 Johns. Ch., 367; Massie v. Donaldson, 8 Ohio, 377; Walter v. Coulson, 1 McLean, 125; Chalfant v. Monroe, 3 Dana, 35; 1 Danl. Ch. Prac., ch. 4, sec. 8; French v. French, 8 Ohio, 381.
We do not see, however, that the admissions made by the guardian, in this instance, went to prejudice the rights of the infant, the present complainant. The judgment recovered against Eobert Ealston, and the return of the execution issued thereon, were part of the records of the court, and we cannot assume that the decree was made upon these admissions, or upon the other fact admitted by the guardian, that the said Mary H. was the daughter of the said Eobert Ealston. The material facts alleged, on which the prayer of the complainant, Miller, was based — as that the title of the lots was by the said Eobert, taken in the name of his infant daughter, Mary LI., in order to prevent the same from being reached by his creditors; that the purchase money was paid by the said Eobert, and not by the said Mary IT.; that the improvements on said lots were made by the said Eobert, [27]*27and paid for by his own means ; and that the said Mary held the title in her own name, as the trustee of said Robert; these are all denied by the answer of the guardian, and were required to be proved by the said Miller, before any decree could be rendered in his favor.
The second objection urged is, that the appointment of the guardian ad litem, was made on the application of the complainant in said suit. In Knickerbocker v. Defreest, 2 Paige, 304, it is said that “ the court never selects a guardian ad litem, on the nomination of the adverse party.” By this, it is understood, that the court will not permit the adverse party to choose the guardian for the infant. Subject to this rule, it is held that the guardian may be appointed either on the motion of the plaintiff, or of the defendant. McPherson on Infants, 396; Williams v. Wijum, 10 Vesey, 159.
Free access — add to your briefcase to read the full text and ask questions with AI
Stockton, J.
An infant defendant is as much bound by a decree in equity against her, as a person of full age; therefore, if there be an absolute decree against a defendant [24]*24who is under age, she will not be permitted to dispute it, unless upon such grounds as an adult might have disputed it: as fraud, collusion, or error. To impeach the decree on the ground of fraud or collusion, she may proceed either by bill of review, or by original bill. To impeach it on the ground of error, she may proceed by original bill; and she is not obliged to wait for that pm-pose until she has arrived at the age of twenty-one. 1 Danl. Ch. Practice, 205. In ordinary cases, where an infant is allowed time after her arrival at the age of twenty-one years, to show cause against a decree, the decree, in such cases, is deemed complete ; but the infant has the time allowed to show cause against it. If no cause is shown within the time specified, the infant is bound. McPherson on Infants, 412; 1 Danl. Ch. Practice^ ch. 4, sec. 8.
After the infant comes of age, and before the decree is made absolute, she may, as a matterjjf course, obtain leave, on motion, to amend her answer, or to put in a new one. Stephenson v. Stephenson, 6 Paige, 358; James v. James, 4 Ib., 115. For, this permission to show cause against the decree, would be merely nugatory, if the infant were bound by the answer of the guardian. JBy the new answer, she may make a better defense, and support that defense by evidence ; she may examine witnesses anew, and may file a bill of discovery. McPherson on Infants, 415. An infant defendant wishing to make a new defense, must apply to the court as early as possible after attaining the age of twenty-one years ; for, if she is guilty of any laches, her application will be refused. Mason v. Debow, 1 Hayward, 178; 1 Danl. Ch. Practice, 216.
She may either impeach the decree on the ground of fraud or collusion between the plaintiff and her guardian, or she may show error in the decree. She may also show that she had grounds of defense, which were not before the court, or were not insisted on at the hearing; or that new matter has subsequently arisen, upon which the decree may be shown to be wrong. 1 Danl. Ch. Pr., ch. 4, [25]*25see. 8, 222. If an erroneous decree has -been obtained against the infant, and the error is not in the judgment of the court, but in the facts on which the judgment is founded —as where there has been fraud or collusion between the plaintiff and the guardian ad litem — or if there has been any deception, or any surprise upon the court, the infant may, either during her infancy or afterwards, investigate the decree by a bill of review, or by original bill; and this, although her ground of complaint against it is confined to error. The proceeding on which the decree against her has been founded, is treated as fraudulent — though this expression may not, in its ordinary acceptation, be applicable to the transaction; it being considered fraudulent to take advantage of the incompetency of the infant to defend herself. McPherson on Infants, 430, 431.
The bill of complaint, in this case, is not a.bill of review; but is an original bill to set aside the decree and sale of the lots in controversy, for fraud. The complainant does not ask to be allowed to put in a new answer in the suit of Miller ; nor to amend the answer put in for her by her guardian. But she complains that there was error in the decree rendered, and prays that the same may be reversed; and that the sale of the lots be set aside, and the deed made by the sheriff, cancelled. By her amended bill, she charges that the defense made for her by her guardian, was fraudulent in law; that the purchase of the lots by the said Grimes, and the deed to him by the sheriff, was, as against her, fraudulent and void. And she prays that, for fraud in the defense made by the guardian, the decree and sale be set aside, and that the defendant, Lahee, the present holder of the title derived from Grimes, the purchaser at sheriff’s sale, may be decreed to convey the said lots to the complainant.
The first objection urged by the complainant to the decree of the district court is, that it was made without any sufficient answer on her part, by the guardian appointed for her. It seems that two answers were put in by the guardian. In one, the guardian, averring that he. knows nothing of the [26]*26tl-uth of the allegations of the complainant’s bill, admits none of them to be true, and leaves the complainant to the proof. In the other answer, the guardian admits that judgment has been recovered, as alleged by said Miller, against said Eobert Ealston; that execution issued thereon, had been returned, “ no property foundthat said Ealston had no property out of which said judgment could be satisfied; that the said Mary TI. is the daughter of said Eobert Ealston ; and that the title of said lot, 239, A., is in the said infant. The other allegations of the bill are denied.
An infant is not bound by admissions made in his or her behalf, unless such admissions are for the benefit of the infant ; and where there is an infant defendant, and it is necessary, in order to entitle the plaintiff to the relief he prays, that certain facts should be before the court, such facts, although they might be the subject of admission on the part of adults, must be proved against the infant. There can be no valid decree against an infant, by default, nor on the answer of her guardian. Mills v. Dennis, 3 Johns. Ch., 367; Massie v. Donaldson, 8 Ohio, 377; Walter v. Coulson, 1 McLean, 125; Chalfant v. Monroe, 3 Dana, 35; 1 Danl. Ch. Prac., ch. 4, sec. 8; French v. French, 8 Ohio, 381.
We do not see, however, that the admissions made by the guardian, in this instance, went to prejudice the rights of the infant, the present complainant. The judgment recovered against Eobert Ealston, and the return of the execution issued thereon, were part of the records of the court, and we cannot assume that the decree was made upon these admissions, or upon the other fact admitted by the guardian, that the said Mary H. was the daughter of the said Eobert Ealston. The material facts alleged, on which the prayer of the complainant, Miller, was based — as that the title of the lots was by the said Eobert, taken in the name of his infant daughter, Mary LI., in order to prevent the same from being reached by his creditors; that the purchase money was paid by the said Eobert, and not by the said Mary IT.; that the improvements on said lots were made by the said Eobert, [27]*27and paid for by his own means ; and that the said Mary held the title in her own name, as the trustee of said Robert; these are all denied by the answer of the guardian, and were required to be proved by the said Miller, before any decree could be rendered in his favor.
The second objection urged is, that the appointment of the guardian ad litem, was made on the application of the complainant in said suit. In Knickerbocker v. Defreest, 2 Paige, 304, it is said that “ the court never selects a guardian ad litem, on the nomination of the adverse party.” By this, it is understood, that the court will not permit the adverse party to choose the guardian for the infant. Subject to this rule, it is held that the guardian may be appointed either on the motion of the plaintiff, or of the defendant. McPherson on Infants, 396; Williams v. Wijum, 10 Vesey, 159. There is nothing in the record to show that the adverse party selected the person appointed guardian for the infant.
The third objection urged is, that the guardian appointed was interested against the infant, his ward, in one of the said lots, at the time of his appointment, and at the date of the decree. This fact might have afforded a sufficient reason for removing the guardian, and for the appointment of some other person. But unless it is shown that the guardian appointed, made use of his position as such, to work some injury to the interest of the infant, the mere fact that he was interested in the title of one of the lots, is not such conclusive evidence of fraud, as to authorize the setting aside the decree for that reason alone.
The fourth objection is based upon the reception of evidence by the court, by permission of the guardian, which was otherwise inadmissible; and upon the fact that the court received and acted upon admissions made by the guardian, which he had no right to make, and by which the infant was not bound. This objection refers more particularly to the affidavits of certain persons, made and filed in the cause, and used by consent of parties, instead of the testimony [28]*28being taken upon interrogatories, in tbe usual form of depositions. Infants are as much bound by the conduct of those who conduct their case, as adults, provided their conduct be bona fide. And it has been held that although the rule is, that the evidence must be taken upon interrogatories, and not upon affidavits; yet, if the solicitor for the infant assents to, and acquiesces in, the mode of proceeding, the infant will be thereby bound. Tillotson v. Hargrave, 3 Mad., 494; 1 Danl. Ch. Pr., 205.
The objections urged by tbe complainant,- may have been altogether pertinent on an application by her to open the decree, and allow her to file an amended answer, and contest anew the right of Miller to the relief granted him. Such, however, is not the object of the present bill. It is insisted by the counsel, that this is not a bill of review, but an original bill to set aside the decree and sale, for fraud; that it is not a continuation of the old, but is a new proceeding, on an original bill, to remove the cloud upon complainant’s title, created by the former proceedings. She does not seek to try over again the chancery suit of Miller v. Ralston, upon a new or amended answer, nor upon new or additional testimony. Her purpose is to reach the property in the Lands of Lahee, the present holder by intermediate conveyances, of the title derived under the sheriff’s sale by virtue of the decree. We think no such fraud or collusion has been shown, as to authorize the court to vacate the former decree for that reason, and declare the title of the property vested in the complainant. As she was allowed time after coming of age, to show cause against the decree, she was, as a matter of course, entitled, at any time before the decree was made absolute, to put in a new answer, and have the cause heard again. Fountain v. Caine & Jeffs, I Perre Williams, 504. The consequence of such putting in of a new answer is, that if it is replied to, she may examine -witnesses anew to prove her defense, which may be different frgm what it was on the first trial. Napier v. Effingham, 2 Perre Williams, 401.
[29]*29The consequence of a reversal of the first decree, or of a decree on a rehearing of the former suit, against the complainant, Miller, and its effects upon the title of the property in the hands of Lahee, claiming to be an innocent purchaser for a valuable consideration, without notice, need not now be determined. Where a decree lias been rendered against an infant, and she afterwards succeeds in showing that it ought not to have been made, the court will place her, as far as is conveniently practicable, in the situation in which she was before the decree was made. Pope v. Lemaster, 5 Littell, 76; Prutzman v. Pitesell, 3 Harr. & J., 77, 82. Whether the title of the present respondent can be affected, may be the subject of future consideration.
We notice another defect in the proceedings, which we think constitutes a valid objection to the decree-rendered. Neither Miller nor Ralston, parties to the original suit, are brought into court by service of process, nor is Grimes, the purchaser at the sheriff’s sale, even made a party. The court could not adjudge the original decree void, without bringing into court, in some manner, all the parties to it; and as the interests of Grimes, the purchaser at the sheriff’s sale under the decree, were to be affected by the proceedings, it was requisite that he also should have been made a party..
Decree reversed.