
    John Horspool, Plaintiff and Respondent, v. Henry Davis, Thomas Webb, Trustee, Henry S. Davis, Jessie Isabella Davis, Hamilton Jackson, and Blanche Davis, Infants, Defendants and Appellants.
    1. Where property is devised by a testator to his executors in trust, to apply the rents and profits to the support of a person named (his daughter) during her life, and after her death to the support of the children of such person during their respective minorities, and to convey to each his or her aliquot share on arriving at the age of twenty-one years, and such person subsequently marries and has issue of the marriage, the estate of her infant children in the said property cannot be divested by an order of the Court of Chancery made on a petition of the Trustee and such daughter and her husband, authorizing a mortgage of the property to raise money to improve it, unless the infants are parties to such proceeding.
    2. Unless the infants are made parties, the order authorizing the execution of the mortgage is, as to them, comm non judice; and the mortgage given in pursuance of the order is inoperative and void.
    (Before Bosworth, Ch. J., and Pierrepont and Moncrief, J. J.)
    Heard, May 7th;
    decided, June 2d, 1860.
    Appeal by the defendants from a judgment rendered ón a trial had in March, 1859, before Mr. Justice Hofeman, without a jury.
    This action is brought to foreclose two mortgages on No. 70 William street, New York, executed by Joel Platt, Trustee of the estate of Robert Steele, deceased, and Henry Davis and Isabella his wife; one to Eliza Smith, for $6,000, dated 20th June, 1839, and the other to Eliza A. Barrow, for $3,500, dated 13th July, 1839—the plaintiff claiming as assignee under assignments dated, as to the Smith mortgage, August 1, 1844, and, as to the Barrow mortgage, May 1, 1844.
    
      No question arose on the pleadings. The Judge found, as facts—
    
      First. That Robert Steele died on the 19th day of August, 1823, seized and possessed of the mortgaged premises, and leaving a will, duly executed, to pass real estate, which contained, inter alia, the clauses following, viz.:
    “I give and devise unto my executors hereinafter named and the survivors and survivor of them, and the heirs of such survivor, the lot and premises 70 William street, together with three lots on Stone street, in said city, upon trust, to rent the same, and out of the rents to keep the same in repair and insured ; then to apply the remainder of the rents to the maintenance and education of my daughter, Isabella Margaret Steele, during her minority, or until her marriage, and after she shall arrive at the age of twenty-one years or get married; then to pay the same to my said daughter, Isabella Margaret Steele, or to such person as she, by writing, shall direct to receive the same, during her natural life, for her sole and separate use, independent of any husband, so that the said Isabella Margaret Steele shall not sell, mortgage, charge, or otherwise dispose of the same in the way of anticipation, and after the death of the said Isabella Margaret Steele, leaving lawful issue, in trust to apply the said rents, issues and profits, from time to time as they shall be received and collected, to and among such issue in the same proportion as they would be entitled under the laws of this State, to take and enjoy real estate descended from her as her heirs-at-law, if she had been seized of the same and had died unmarried. And on the farther trust to apply the respective proportions of such of said issue, as may be under age, during their respective minorities, to his, her, or their maintenance and education, and to convey to each of them, on his or her arriving at the age of twenty-one years, his or her share respectively, in fee simple of the said houses and lots Nos. 16, 18, and 20 Stone street, and No. 70 William street, to such child or children, and the issue of such child or children if they be dead, his, her, or their heirs and assigns forever.”
    
      Second. That Joel Platt was duly appointed Trustee under the will of Robert Steele, by an order of the Court of Chancery, made on the 27th da}' of September, 1831.
    
      
      Third. That in the year 1835, Isabella Margaret Steele married the defendant, Henry Davis.
    
      Fourth. That immediately after May 1st, 1839, two old and dilapidated buildings standing upon the premises described in the complaint, were removed by the said Henry Davis without the authority of said Trustee, leaving the said premises vacant.
    
      Fifth. That before the eighth day of June, 1839, the said Davis made an agreement in writing with one James Gr. Wilson, for the erection of a building upon the said premises, and that said agreement was made in contemplation of obtaining the order hereinafter mentioned.
    
      Sixth. That before the said eighth day of June, the erection of the said building was commenced by'said Wilson.
    
      Seventh. That on the said eighth day of June, a petition was presented to the Court of Chancery by said trustee and said Davis and wife, and that upon the said petition such proceedings were had, that an order was made by said Court June 10, 1839, authorizing said Joel Platt as Trustee, to mortgage No. 70 William street, for any sum not exceeding $10,000, “ the said Trustee to keep down the interest on said mortgage debt, and also to pay all taxes and assessments, and the premiums of insurance on the building to be erected, out of the rents and profits to be derived from the said premises.” The defendants Henry Davis and Isabella Margaret Davis, who were then living and infants, were not parties to the proceedings on which said order was made. The petition stated that there were no buildings on the premises, that the Trustee had no funds with which to improve; and that the petitioners desired to raise by mortgage $10,000, or less, “for the purpose of erecting suitable buildings, so that a larger income may be derived from the said property.”
    
      Eighth. That in pursuance of said order of June 10th, 1839, the bonds and mortgages in question were executed, acknowledged and delivered.
    
      Ninth. That $6,000 was advanced and lent to said Trustee by Eliza Smith upon the bond and mortgage executed to her, and that $3,500 was advanced and lent by Eliza A. Barrow upon the bond and mortgage executed to her.
    
      Tenth. That the said moneys so advanced and lent, were under the control of Joel Platt, the said Trustee, who allowed the whole of said moneys to be received by the defendant Henry Davis, and that this fact was known to the plaintiff herein at the time when said mortgages were executed.
    
      Eleventh. That the building described in the complaint, was not paid for in whole or in part by said moneys, but was paid for by merchandise, securities and other moneys belonging to the said Henry Davis, substituted in the place of those received by him of the Trustee, who permitted him to expend the same thereon. That the said building was erected in compliance with the said order, was a valuable improvement of the said premises, and was of a substantial and permanent character, and that inasmuch as the said premises were vacant, the erection of the said building was indispensable to provide income therefrom and a necessary improvement.
    
      Twelfth. That the plaintiff is now the holder of the said bonds and mortgages under assignments thereof, in due from.
    
      Thirteenth. That at the time of the execution of said bonds and mortgages, only two children had been born of the marriage of the said Henry Davis and Isabella Margaret Steele, namely: the defendants Henry Steele Davis and Jessie Isabella Davis, who were then infants.
    
      Fourteenth. That two children have since been born of the said marriage, namely: the defendants Hamilton Jackson Davis and Blanche Davis.
    
      Fifteenth. That the defendant Thomas Webb was duly appointed Trustee under the will of the said Robert Steele, by a decree of the Court of Chancery, made on the 21st day of June, 1847, and duly qualified as such Trustee.
    
      Sixteenth. That Isabella Margaret Davis died in the month of October, 1851.
    That the sum of $15,067.28 is now due upon the bonds and mortgages set up in the complaint.
    And upon the said conclusions of fact so found, the said Court decided, as matters of law,
    That the order of the said Court of Chancery authorized the execution of the said mortgages, and the said mortgages themselves were valid and obligatory, and that the plaintiff, as the assignee thereof, was entitled to a judgment of foreclosure thereof, &c.
    
      Judgment was entered accordingly declaring, among other things, that the defendants be forever barred and foreclosed of all right, &c., in the said premises or any part thereof.
    Erom that judgment the Trustee, Thomas Webb, and the defendants Henry Steele Davis, Hamilton Jackson Davis, Jessie Isabella Davis and Blanche Davis appealed to the General Term.
    
      M. S. Bidwell, for appellants.
    I. The title of the plaintiff is not derived from any conveyance or act of these defendants: the onus of proving that he has a right to have their interest barred and extinguished, rests upon him. He must prove this right clearly: if it remains doubtful, he will not be entitled to judgment against them.
    II. The Trustee under the will of Robert Steele did not take an estate in fee, but an estate for the life of the testator’s daughter, Isabella Margaret (Steele) Davis, and a contingent term, determinable, as to her children severally, if they should survive her, when they respectively attained the age of twenty-one years. (Baker v. Lorillard, 4 Comst., 257, 269, 270; Nodine v. Greenfield, 7 Paige, 548; Doe v. Provoost, 4 John., 61; Cochran v. Van Surlay, 20 Wend., 374.)
    The rule as to vesting of estates in such cases is the same in equity as at law. (Adams’ Eq., 49, [52 Law Lib., N. S.;] Burton’s Real Prop., 419, [7 id.;] 4 Kent’s Com., 302, 303; 2 Bl. Com., 337.)
    But the estate devised to the children was a legal estate, and not a mere equitable interest. (Nicoll v. Walworth, 4 Denio, 385, 388, 389, and the authorities there cited.)
    The authority or direction to the Trustee to convey the property to the children did not, of itself, confer on the Trustee a fee. (Doe d. Player v. Nicholls, 1 B. & C., 336; 2 D. & R., 480.)
    It was the intention of the testator, apparent on the face of the will, that the children should then become the absolute owners of the property in fee.
    If, however, upon common-law principles, the estate of the trustee was a fee-simple, and the interests of the children of the testator’s daughter were merely equitable, yet, by force and operation of the statute, the estate of the Trustee would terminate when those children, surviving their mother, should become of the age of twenty-one years, and they would then severally have a legal estate of the same quality and duration as their respective beneficial interests.
    III. The plaintiff’s title depends on the validity and effect of the order of the Vice-Chancellor, of 10th June, 1839, and the subsequent proceedings under it.
    1. That order did not enable the Trustee, Joel Platt, to give a mortgage, by which the interests of the children could be bound.
    
      (a.) The Court of Chancery has no inherent original jurisdiction to direct the sale or disposition of the real estate of an infant.
    Its jurisdiction, in cases of this kind, rests altogether upon the statutes authorizing the sale or disposition of the real estates of infants. (2 R. S., 195, § 176; Rogers v. Dill, 6 Hill, 415; Williamson v. Berry, 8 How. U. S. R., 556; 20 How. Pr. R., 427-431.)
    (b.) Ever since 1815, this power has been restricted by the terms of the statute to cases where such sale or disposition does not contravene the provisions of the will or conveyance by which the estate was devised or granted to the infant. (Laws of 1815, ch. 106; 2 R. S., 195, § 176.)
    (c.) The order directed the Trustee to execute mortgages, in plain contravention of the will of Robert Steele, and was therefore void under this law.
    (d) The application for the order should have been made by the next friend or guardian of the infants. (2 R. S., p. 179, § 170.)
    No one else was authorized to make it.
    The application from persons so authorized was necessary to give the Court jurisdiction of the case. But there was no such application.
    The Court, therefore, had no jurisdiction of the case.
    On this account the order was void.
    (e.) The statute requires also, that on such an application the Court shall appoint a guardian of the infant in relation to the application. (2 R. S., p. 194, § 171.)
    The appointment of a guardian is necessary to give the Court jurisdiction of the infant; without it, the order of the Court is void. (Bloom v. Burdick, 1 Hill, 130, 139; Schneider v. McFarland, 2 Comst., 459.)
    No guardian for the infants was appointed.
    On this account the order was void.
    
      It is quite clear that the order cannot be sustained under the statute.
    II. If, however, the estates of the children are to be deemed mere equitable estates, yet the Vice-Chancellor had no power to order a sale or disposition of them, except in the mode prescribed by the statute. (2 R. S., 194, 195.)
    (a.) The statute is not in its terms confined to the legal estates of an infant.
    The expression “ real estate ” (unless qualified by the context,) when used in a statute, is a generic term which comprehends equitable as well as legal estates.
    The reason and policy of the statute are applicable to equitable as well as legal estates.
    
      (b.) The power of the Court of Chancery in England over infants was not a part of, or derived from, its general jurisdiction 'as a court of equity.
    No such power was ever exercised or claimed by the Court of Exchequer, although, until quite recently, that Court possessed the same equity powers as the Court of Chancery. (Bl. Com., 426, 427.)
    It is not a power which a court of equity possesses by virtue of its general jurisdiction. (2 Story’s Eq. Jur., §§ 1328, 1330.)
    In England, the King, as pater patriae, is entitled to the care and custody of infants; this is a royal prerogative; this power is delegated to the Court of Chancery, which, in the exercise of it, represents the King as parens patriae. (McPherson on Infants, 101; 2 Story’s Eq. Jur., §§ 1333, 1334.)
    (c.). Equitable estates are as distinctly recognized and as well established as legal estates. They have, in equity, all the attributes and qualities of legal estates. (4 Kent’s Com., 302, 303 ; 2 Bl. Com., 337; 1 Sand. on Uses, 269, et seq.; Burgess v. Wheat, 1 Eden’s R., 223, 224.)
    Upon general principles, therefore, the Court of Chancery has no more right to dispose of them than of legal estates. (Adams’ Eq., 284, 285; 52 Law Lib., [N. S.;] Furlam v. Sanders, Bac. Abr. Uses and Trusts, [E 8,] cited Hill on Trustees, last ed., 317.)
    
      (d.) Assuming, however, that the disposal of an infant’s equitable estate was within the jurisdiction of the Court of Chancery, 
      jet that jurisdiction could be exercised only in those particular cases where the Court has acquired jurisdiction of the cause, and the parties by the institution of a regular suit. The Court of Chancery cannot even appoint a Receiver of an infant’s property upon petition. (Ex parte Whitfield, 2 Atk., 315; Ex parte Mountfort, 15 Ves., 445.)
    Much less can it acquire jurisdiction to order a sale or mortgage of real estate upon a mere petition. (Williamson v. Barry, 8 How. U. S. R., 533.)
    At all events, the Court must acquire jurisdiction of this cause, if not by regular suit, at least by petition, and must acquire jurisdiction of the person of the infant by the appointment of a guardian ad litem to represent him and take care of his interests. (Bloom v. Burdick, 1 Hill, 130, 139.)
    This would be in effect a suit. (Schneider v. McFarland, 2 Comst., 463.)
    The necessity of his having an opportunity to be heard in person or by a guardian before he can be deprived of his estate, stands upon first principles and does not require to be established by the authority of adjudged cases. It is a fundamental principle of jurisprudence that, until a Court has acquired jurisdiction of a person, its acts are, as to such person, a nullity. They cannot bind, him or his property. (Bloom v. Burdick, 1 Hill, 130, 139; Rex v. University of Cambridge, [Dr. Bentley’s case,] 1 Str., 557, 566, 567; Chase v. Hathaway, 14 Mass., 222, 224, 225.)
    
      William Curtis Noyes, for respondent.
    I. By the will of Robert Steele, deceased, his daughter,. Mrs. Davis, was entitled, through the Trustee, to the rents and profits of the premises for her life; and the mortgages, having been executed by the husband and. herself, jointly with the Trustee, were unquestionably good as to her, to the extent of her interest.
    II. The Trustees under the will took the legal estate: for the benefit, of Mrs. Steele and her children and their issue; and, in default of such issue, for the sons of the testator and their issue.
    1. The devise is to them “and the survivors or survivor of them, and the heirs of such survivor.”
    2. So it is “ upon trust to rent the same, and out of the rents to keep the same in. repair and insured, then to. apply the remainder of the rents to the maintenance of my daughter Isabella during her minority and until her marriage; and after she shall arrive at the age of twenty-one years, or get married, then to pay the same to my said daughter, or to such person as she shall direct to receive the same, during her natural life, for her sole and separate use, independent of any husband, so that the said Isabella shall not sell, mortgage, charge, or otherwise dispose of the same in the way of anticipation.”
    3. So, after her death, leaving issue, in trust, to apply the rents, &c., from time to time as they shall be received and collected, to and among such issue in the same proportions as they would be entitled to as heirs if she had been seized of the same and had died unmarried; but on this further trust, to apply the respective proportions of such issue as may be under age, during their minorities, to their maintenance and education.
    4. To convey to each, on his or her arriving at age, his or her share, in fee simple, “ to such child or children, and the issue of any such child or children, if they be dead, his, her, or their heirs and assigns forever;” and,
    5. In case Isabella should die without issue, then, upon the further trust, to convey the same to his sons; their heirs and assigns, forever, on attaining thirty; and, if either of them be dead, then to convey his share to-and among the issue, &c.
    III. The intent of the devise is clearly to vest the legal estate in the Trustees, and to exclude any of the beneficiaries from any right of control over the property; and the words employed are eminently fit and proper to attain that result by legal means.
    1. The devise is in trust.
    2. So upon each devise over the continuation of the trust is declared in express terms.
    3. The direction “ to rent” the premises, equivalent to a power to lease and demise, requires a legal estate to support the demise, and to sustain the reversion from time to time, and make new leases.
    4. So the clause against anticipation.
    5. So the clauses requiring the application of the rents from time to time to repairs and taxes, and then to the maintenance of Isabella, and to that of her children during their minorities, show such intent; and are, besides, good as active trusts under
    
      the Revised Statutes, (1 R. S., p. 728, § 55,) also requiring the legal estate to enable the Trustees to execute them.
    6. So the express direction to apply the rents and profits among the issue of Isabella, as her heirs, in the same proportions as “ if she had been seized."
    
    7. So the other express provision, that in certain contingencies they should “ convey,” and should convey in fee simple to the .parties entitled, all assuming the legal title in the trustees, and not in any of the beneficiaries.
    8. The well-settled rule is, that trustees take exactly that quantity of interest in the estate which the purposes of the trust require (Hill on Trustees, 2d ed., p. 239, and cases there cited); and, inasmuch as they were to rent the premises, and apply the rents and profits to the maintenance of Isabella, and also to that of her children during their minorities, they must take a fee to enable them to do so.
    The case of Greason v. Keteltas, (17 N. Y. R., 491,) and the other cases cited by Judge Hoffman, are deemed conclusive on this point. (Booth v. Field, 2 B. & Adol., 561; Pitcher v. Carter, 4 Sand. Ch. R., 1.)
    IV. The interests of the infants in the premises being purely equitable, it was competent for the Court of Chancery, in the exercise of its general jurisdiction, to authorize the Trustee to mortgage it for the purpose of improving the premises and making them more productive.
    1. This rule is well settled in this State. (Hedges v. Riker, 5 Johns. Ch. R., 163; Cochran v. Van Surlay, 20 Wend., 375, per Walworth, Chancellor; id., 379, per Verplanck, Senator; McPherson on Infants, 295, L. L., [N. S.] vol. 25; Umblely v. Kirk, 1, [P. Cooper,] 254; Huger v. Huger, 3 Dess., 18; Pitcher v. Carter, supra; Greason v. Keteltas, supra.)
    
    
      2. It makes no difference in applying the rule, that some limitations of the equitable estate may possibly be changed. (Platt v. Sprigg, 2 Vern., 303; Frenin v. Charlton, 1 Eq. Ca. Ab., 386, pt. 4; Bassett v. Clapham, 1 P. Will, 358; Winnington v. Foley, id., 536; 2 Seld., 567; 3 Sand., 531.)
    3. Nor does section 65 of the article of the Revised Statutes, in regard to uses and trusts, affect the question, as that relates only to the legal title. (1 R. S., 730; Revisors’ Notes, 3 R. S., 2d ed., p. 586 ; Cochran v. Van Surlay, supra.)
    
    
      V. Even without an order of the Court of Chancery, a Trustee to whom the legal estate is devised, burdened with the duty of repairs and maintenance, may make repairs, even to the addition of new buildings; and if adjudged reasonable, and such as the Court would have directed, will be allowed for them in passing his accounts. (Hill on Trustees, 2d ed., 429, and cases there cited; McPherson on Infants, 295.)
    VI. The money loaned upon the mortgages was advanced in good faith, relying upon the order of the Court, and the mortgages executed in pursuance of it, was actually received by the Trustee, and the lenders were not bound to see to its application, nor are they in any way affected, even if it was misapplied by him, which is denied. (1 R. S., p. 730, § 66; Hoonoomanpers & Gandy v. Mussumat Babone Munrey Kooneveree, 6 Moore’s In. Ap., 393; Archey v. Hudson, 7 Beav., 551.)
    VII. The moneys loaned were, however, substantially applied by the Trustee and his agent, Davis, to the erection of a building upon the premises, as contemplated by the order of the Court of Chancery, and the immediate devisee" of the equitable estate in the premises, and her children have had the full benefit of it, and the defense now set up is unjust and inequitable.
    The judgment should be affirmed, with costs.
   By the Court—Bosworth, Ch. J.

Are the mortgages in question operative and.valid as against the infant children of Henry Davis and Isabella M. Steele his wife ?

Those of them, who were in esse, when the petition of Joel Platt, Trustee, and of Davis and wife was presented to the Court of Chancery, were not parties to that proceeding. In that pro- " ceeding the Court of Chancery had no jurisdiction of their persons ; no one was appointed or assumed to represent them, in it.

The mortgages were not made, nor was power to make them asked, for the purpose of so improving the estate that it would produce a fund, for their support.

The observations of the Chancellor, in Cochran v. Van Surlay, (20 Wend., 373-376,) furnish no warrant for holding the mortgages valid as against the infants.

The proceedings in the Court of Chancery were not taken under article 7, of title 2, of chapter 1, part 3, 2 Revised Statutes.

In Hedges v. Riker, (5 J. C. R., 163,) the proceeding was by bill, and the infants were parties to the suit. The Court, therefore, had jurisdiction of the persons of all the parties sought to be affected by the decree, as well as of the subject-matter of the suit.

In Pitcher v. Carter, (4 Sand. Ch. R., 1,) the petition for leave to mortgage, attempted to make a case showing that such a course “ was necessary and proper for the support and maintenance of Mrs. Artois and her infant children, and the education of the latter; ” prayed “that a guardian should be appointed for the infants, to join in the execution of the mortgage,” and the order entered on the coming in of the report of a master made thereon, “ directed the mortgage or mortgages to be executed by Artois and wife, by Clason as Trustee, and also by Clason on behalf of the infants, and that the same should bind and be an incumbrance upon the several estates which those parties had in and to the premises,” &c., &c.

That case is clearly distinguishable from the present. In that the infants were parties to the proceeding to obtain authority to mortgage; and that authority was sought, avowedly, to provide for the support and education of the infants, as well as for the benefit of Mrs. Artois, and the order made attempted to provide for the payment, (in part at least,) of the mortgage, out of the income of the improvements to be made with the money, the mortgage was given to secure.

In the present case, these facts do not exist—

What the Court said of its power over the equitable estate of infants in Hedges v. Riker, and in Pitcher v. Carter, was said of its power in cases to which the infants were parties, and in which it was proposed to affect their title for their benefit, and in which, therefore, it had jurisdiction of their persons, as well as of the subject-matter of the suit or proceeding.

The opinion of the Court at Special Term, states that the case was decided in favor of the plaintiff on the ground, that Pitcher v. Carter, (supra,) was in point, and was an authority sustaining the validity of the mortgages in question.

But I think the distinctions already stated between that case and the present must have been overlooked; and that if these mortgages are to be upheld as valid and obligatory against the infants, then it must be conceded that the rule that a judgment, decree, or order, cannot affect strangers to it, has no application to infants ; and that infants who most need protection are not entitled to it, or to be heard upon the question whether their equitable interests shall be mortgaged or alienated, as an essential prerequisite to a valid mortgage or conveyance of them.

In my opinion the order giving authority to mortgage, and the mortgages in question executed in pursuance of it, are inoperative and void as against the children of Isabella M. Davis. (Cowen & Hill’s & Edwards’ Notes, vol. 2, pp. 6, 60, and cases there cited.)

The judgment should be reversed and a new trial granted, with costs to abide the event.

Ordered accordingly.  