Bleckley, Judge.
The court granted a new trial. The genei’al question for our decision is, whether there was an abuse of discretion in so doing. We need not examine all the grounds embraced in the motion. The case is so emphatically a complication, that the court was quite justifiable in overhauling it by another trial. There was certainly ex-ror in the charge, so far as it recognized the possibility of estoppel upon the minors by the knowledge of their rights, with presence at or near the place of sale, and failure to make known their objections. There was no evidence that they knew their rights. We do [727] not know them now, after hearing all the argiiment made by the learned counsel upon them. Besides, had their-knowledge been ever so perfect, all they were bound to communicate, on seeing their property about to be sold, was that it was their property under their father’s will. 9 Ga., 23. And this was already known. The purchasers knew it, for the sale was made under a decree which referred to the will and recognized their interest. If the minors had made the sale themselves, or expressly assented to it, and if the consideration had moved directly to them, they would not have been estopped to reclaim the land, on refunding to the purchasers the money received ; for it cannot be said to be, an act of legal fraud for an infant to repudiate an agree-, ment which, because of infancy, is not binding. 19 Ga., 22.
Of course, if the sale was valid, apart from the consent or acquiescence of the minors, their failure to forbid it, with knowledge of their rights, would have nothing to do with the matter, and charging upon the subject at all was error. The jury may have found their verdict upon that charge, so that the real case may never have been tried. ¥e think it was error, moreover, to admit evidence of the wishes of the deceased executrix, and of other members of the family, as to who should succeed her in the administration, such evidence being irrelevant. Also, that it was error of the same kind to admit evidence that the adult sister of the minors, who subsequently became their guardian, urged a sale of the lands. She was one of the parties that joined in the application for the sale, and that being so, whether she urged the sale was of no consequence, though she afterwards became guardian. These errors as to evidence, were of no real importance, and we rule on them that they may not incumber the ease hereafter. The real case lies in the two questions: Was the decree of sale void? and if so, inasmuch as a regular guardian of the minors received under it all the proceeds to which her wards would have been entitled if the decree had been valid, can the wards recover the land without refunding as much money as went into their guard [728] ian’s hands, or can they recover by refunding so much only as came from their guardian to them, or was expended by her for their benefit ? As there is to be another trial, we shall not attempt a decision of these questions.
Upon the argument which we have heard, we are not prepared to take the case out of the hands of Judge Ilall, and prevent him from trying it over. We doubt not that a thorough sifting of the authorities is needed, and none such has taken place in our presence. Was the decree void or valid ? To answer this, it must be determined whether it is' ixi the power of a court of chancery to decree a sale of realty, where the legal title is in an infant. What was the common law ? Has that law been changed by statute in Georgia ? If no direct change, has there been an indirect or consequential change insulting from putting personalty and realty upon the same footing as to distribution, etc. ? What is the effect of investing the ordinary with power to order the sale of lands belonging to infant wards ? Is that power exclusive where the infant has a regular guardian, and does it exist at all where there is no regular guardian ? Is the jurisdiction improper for the ordinary and proper for chancery, because the infant has not a clear, uncontingent title, but a title af- ■ fected by the chances of survivorship, etc., and because there is a contingent remainder to unborn children ? How is the power of chancery affected by the object for which the sale is ordered, whether for maintenance or change of investment ? Can the decree now in question be rested on the power of chancery to interfere in the administration of estates? Some of the sources of light as to the power of chancery over the estates of infants are 2 Story’s Eq., § 1357; 2 White & Tudor’s Leading Cases in Equity, part 2d, p. 171; 1 American L. C., 267; Tyler on Infancy, 296; 1 Fonb. Eq., 88 ; Daniel’s Ch. Pr., “ Infants ” in the index; 3 Desaus., 18, 22; 6 Hill, 415; 9 Dana, 526.
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Bleckley, Judge.
The court granted a new trial. The genei’al question for our decision is, whether there was an abuse of discretion in so doing. We need not examine all the grounds embraced in the motion. The case is so emphatically a complication, that the court was quite justifiable in overhauling it by another trial. There was certainly ex-ror in the charge, so far as it recognized the possibility of estoppel upon the minors by the knowledge of their rights, with presence at or near the place of sale, and failure to make known their objections. There was no evidence that they knew their rights. We do [727] not know them now, after hearing all the argiiment made by the learned counsel upon them. Besides, had their-knowledge been ever so perfect, all they were bound to communicate, on seeing their property about to be sold, was that it was their property under their father’s will. 9 Ga., 23. And this was already known. The purchasers knew it, for the sale was made under a decree which referred to the will and recognized their interest. If the minors had made the sale themselves, or expressly assented to it, and if the consideration had moved directly to them, they would not have been estopped to reclaim the land, on refunding to the purchasers the money received ; for it cannot be said to be, an act of legal fraud for an infant to repudiate an agree-, ment which, because of infancy, is not binding. 19 Ga., 22.
Of course, if the sale was valid, apart from the consent or acquiescence of the minors, their failure to forbid it, with knowledge of their rights, would have nothing to do with the matter, and charging upon the subject at all was error. The jury may have found their verdict upon that charge, so that the real case may never have been tried. ¥e think it was error, moreover, to admit evidence of the wishes of the deceased executrix, and of other members of the family, as to who should succeed her in the administration, such evidence being irrelevant. Also, that it was error of the same kind to admit evidence that the adult sister of the minors, who subsequently became their guardian, urged a sale of the lands. She was one of the parties that joined in the application for the sale, and that being so, whether she urged the sale was of no consequence, though she afterwards became guardian. These errors as to evidence, were of no real importance, and we rule on them that they may not incumber the ease hereafter. The real case lies in the two questions: Was the decree of sale void? and if so, inasmuch as a regular guardian of the minors received under it all the proceeds to which her wards would have been entitled if the decree had been valid, can the wards recover the land without refunding as much money as went into their guard [728] ian’s hands, or can they recover by refunding so much only as came from their guardian to them, or was expended by her for their benefit ? As there is to be another trial, we shall not attempt a decision of these questions.
Upon the argument which we have heard, we are not prepared to take the case out of the hands of Judge Ilall, and prevent him from trying it over. We doubt not that a thorough sifting of the authorities is needed, and none such has taken place in our presence. Was the decree void or valid ? To answer this, it must be determined whether it is' ixi the power of a court of chancery to decree a sale of realty, where the legal title is in an infant. What was the common law ? Has that law been changed by statute in Georgia ? If no direct change, has there been an indirect or consequential change insulting from putting personalty and realty upon the same footing as to distribution, etc. ? What is the effect of investing the ordinary with power to order the sale of lands belonging to infant wards ? Is that power exclusive where the infant has a regular guardian, and does it exist at all where there is no regular guardian ? Is the jurisdiction improper for the ordinary and proper for chancery, because the infant has not a clear, uncontingent title, but a title af- ■ fected by the chances of survivorship, etc., and because there is a contingent remainder to unborn children ? How is the power of chancery affected by the object for which the sale is ordered, whether for maintenance or change of investment ? Can the decree now in question be rested on the power of chancery to interfere in the administration of estates? Some of the sources of light as to the power of chancery over the estates of infants are 2 Story’s Eq., § 1357; 2 White & Tudor’s Leading Cases in Equity, part 2d, p. 171; 1 American L. C., 267; Tyler on Infancy, 296; 1 Fonb. Eq., 88 ; Daniel’s Ch. Pr., “ Infants ” in the index; 3 Desaus., 18, 22; 6 Hill, 415; 9 Dana, 526.
If it should be ascertained that a court of equity in Georgia has power to convert an infant’s realty into personalty, either for maintenance or for the advantage of bettering the [729] investment, or for both purposes conjointly, then, was the power brought to bear by the means adopted in the instance before us? Ve could hold with certainty, that no bill was filed, because no subpoena was prayed for or issued. In equity practice, a bill without any defendant would be an anomaly. And only those persons are defendants against whom subpoena is prayed : Code, §4175 ; 5 Ga., 251. The so-called decree was rendered upon petition only. All the parties to it were on the same side. Two questions arise on this branch of the case: Could the court possess itself of the parties and the subject matter by petition ? and, if so, was the appointment of the administrator as guardian ad litem for the infants void, so as, in fact, to leave them unrepresented in the application ? As to what may be done on petition, see Code, §§3100, 4221; 3 Bro. C. C. 88, 500 ; 2 Eden, 148. As to who is a ward of chancery, see 2 Story’s Eq., §1352. It would seem from the authorities that there is no substantial difference between a jprocheim, ami and a guardian ad litem. The former denomination is usually applied when the representation is for an infant plaintiff, and the latter when it is for an infant defendant. But in either case, the representative of the infant is regarded as an officer of court: Story’s Eq. Pl., §§57, 58, note 2; 1 Am. L. C., 263 to 267; 7 M. & W., 400 ; 13 Ib., 640. In 2 Edw. Ch. R., 113, one who was both a joint owner of the property and a creditor of the infant was allowed to act, he being a person of excellent character. Is there any real incompatibility between the office of administrator and that of guardian for the legatees or devisees ? When the court appointed the administrator guardian ad litem for the minors, was he not thereby commissioned as guardian for the conduct of that proceeding, and did he not thenceforth act in the double character of party and officer of the court ? Doubtless it was an improper, an injudicious appointment, but was it therefore void ? It is desirable that further light; be thrown on all these, questions by the production of au[730] thority, if authority cau be found. Should it be held that the decree was void, the inquiry whether the minors must refund all the purchase money received under it by their guardian, or so much only as they have enjoyed the use of, will rise into importance. We know of no direct authority upon the point. Perhaps 9 Dana, 526, would tend to illustrate it; and 46 Ga., 101, bears upon it. ¥e may add that we do not see how any aid to the decree can be drawn from the act of 1865-6, embraced in section 4241 of the Code. That act seems not to enlarge the jurisdiction of equity. Neither does it appear to authorize more to be done by petition than formerly. It relates only to rendering decrees, and is silent as to what steps are to be taken for instituting proceedings, and preparing the case for decree. Then, as to the matter of the decree, it must be necessary and legal. No new relief is provided for. What could be decreed in term may be decreed at chambers, on the conditions specified in the act; but there is no attempt to confer larger powers to be exercised at chambers than could, without the act, be exercised in term time. Finally, we may suggest what has occurred to us in reference to the danger, in the present state of the record, of a decree on the present bill not being obligatory on the infants, if indeed they are still infants. Their guardian no longer represents them, she having been made by amendment a party defendant. There is a very loose appointment of a next friend on the terms of giving bond; whether the terms were complied with, or the appointment accepted, does not appear. Then, by a last amendment, the husbands of the infants are made parties complainants in their character of husbands. Marriage formerly determined guardianship over females, for their fortunes passed to their husbands: 13 Ga., 467. But the law now being that women retain all their rights of property when they enter coverture, it is questionable whether a husband is any substitute for a guardian ad litem or prodhein ami. If this litigation should reach a final decree, it [731] would, be deplorable if, for the want of competent parties, no actual progress should have been made.
Cited for plaintiffs in error : 53 Ga., 514; 13 Ib., 24, 467, 473; 11 Ib., 658; 14 Ib., 539; 29 Ib., 219 ; 37 Ib.. 257; 31 Ib., 601; 28 Ib., 353 ; 27 Ib., 167; 24 Ib., 434 ; 14 Ib., 323; 13 Ib., 1; 11 Ib., 294, 423. For defendants in error: 1 Daniel’s Ch. Pr., 204 note, 206, 216, note ; Code, §1821; 48 Ga., 648; 13 Ga., 24, 467, 478 ; acts 1865-6, p. 221.
Judgment affirmed.