
    Mary E. Spencer, an Infant, by her next Friend, v. Mary V. Godfrey, Administratrix of Joseph V. Spencer, deceased, The Bank of the State of South Carolina, and Joseph V. Spencer, Jun.
    The Court, upon the petition of an administratrix, and after reference to the master, ordered, that the administratrix have leave to mortgage a lot of land, to which she, and her infant children, were intitled by inheritance from her husband and intestate, for the purpose of raising money for the payment of debts ; and the money was borrowed of the Bank, and a mortgage executed by the master, accordingly. Bill filed several years after, by one of the children, to be relieved from the mortgage, on the ground, that the children were not parties to the proceedings, and that the master’s mortgage conveyed nothing, and alleging that the money was misapplied, dismissed as to the Bank.
    The jurisdiction of the Court of Equity to dispose of the real estate of infants, and other persons under disability, has been too long exercised, to be now questioned; and a conveyance, or mortgage, executed by the master, in pursuance of an order of the Court, which was intended to operate on the title of infants, is binding on them, if they are parties to, or represented in, the proceeding, in which the order was made.
    The real estate of an intestate may be ordered to be sold, or mortgaged, for payment of debts, on the application, by petition, of the administratrix, without making the infant heirs formally parties. The interests of the infants are under the protection of the Court, and its order is sufficient evidence, against them, that a necessity existed for disposing of the estate; nor can the title of the purchaser, or mortgagee, he affected by subsequent proof, that there was no necessity.
    A purchaser, or mortgagee, under an order of the Court, is not bound to see that the money is applied to the purpose, for which the sale, or mortgage, was ordered.
    
      Heard at Charleston, January, 1830, before De Saussure, Chancellor, who made the following decree.
    Ds¡ Uauslure, Ch. The defendant, Mrs. Mary Godfrey, formally Spencer, administered on the estate of her deceased husband, Captain Joseph Vesey Spencer, who died intestate, leaving his said widow, and their children, the present complainant,, and the defendant, Joseph Vesey Spencer, and another who has since died, all of them at that time infants, his heirs at law. In 1818, she applied to the Court of Equity, by petition, for leave to borrow money from one of the Banks, upon a mortgage of a lot of land, which belonged to the estate of her said husband, in order to raise money for the payment of debts due by his estate, and also for payment of certain debts contracted by her for the support of the children. The petition was referred to the then master, who reported in February, 1818, recommending that the prayer of the petition be grattietl, and that the petitioner be allowed to borrow the sum of two thousand dollars from some Bank, and to mortgage the lot mentioned in the petition for securing the payment: and he further recommended, that the sum borrowed should be appropriated, under the direction ol the master, to the discharge of the debts due by the estate, and to the payment of the debts contracted by the administratrix for the support of the children ; and that she account to the master for the due application thereof. No opposition was made to this report, and it was confirmed by a decretal order of the Court, on the motion of the petitioner’s solicitor, General Hayne, who was then at the bar. Under this order, the sum of sixteen hundred and sixty.six dollars was borrowed from the Bank of the State of South Carolina, by the master, to whom the money was paid, and who executed a bond for the amount, and also a mortgage of the lot of land mentioned in the petition, to secure repayment of the loan.
    The object of the present bill is to open these proceedings; and that the mortgage of the land to the Bank may be declared void, or the proper application of the money borrowed accounted for.
    On behalf of the complainant, it was urged, that a sale, or mortgage was unnecessary, as there were no debts in fact due by the estate ; and that the money borrowed was applied by the administratrix chiefly to her own use : and it was contended, that the order of 1818, made upon the exparte application of the administratrix, could not affect the title to the land, as the administratrix possessed no power over, and irt fact had nothing to do with, the real estate; and ^at **■ C0U^ not kind the complainant, who was not a party to the proceeding, nor represented in it.
    _u.2,c. .,p. L.250.
    On this statement, it is to be remarked, that there was no proof, that there were no debts of the estate. The petition presented in f * 1818, was referred to the master in the usual way; and he reported that there was a necessity for mortgaging the lot in question, in order to raise money to pay debts due by the estate, and other debts due for the support, of the heirs. And the Court, confiding' in the report of the officer, whose duty it was to make the necessary investigation, confirmed the report, and authorised the loan ; which was obtained, and the mortgage given to the Bank.
    I am bound then to suppose that there were debts of the estate ; and the question arises, as to the ground, on which the Court exercises the power of ordering sales, or mortgages of real estates.
    The authority has been exercised by the Court ever since its formation. It was so, at least, immediately after the revolution, and it is presumed to be founded on the principles of the statute of George the Second, applied to the circumstances of the country. qphe present judges of the Court found that it had been constantly exercised, by their predecessors, and that very beneficially for the citizen ; for the Court was able to prescribe terms, and give such credit, as would enhance prices, and prevent sacrifices of property by cash sales under the execution of creditors. The exercise of the power of authorising the borrowing money to pay debts of the estate, and securing the lender by mortgage, is but a modification of the power of selling, being inferior in degree, and frequently saving estates altogether, by giving time to work out the debts.
    It is true, that, strictly speaking, the administrator has no power over the real estate ; that doctrine being borrowed from the English law. The circumstances of the two countries are, however, materially different. In England, the real estate is not liable to debts, as it is in this country, where it is subjected to the payment of debts by proceedings at law against the administrator. Hence the administrator frequently comes into this Court to anticipate a compulsory and ruinous cash sale, by obtaining an order for a sale on credit. Such has been the practice, and generally it has proved a beneficial one. Besides, in this case, the petitioner was the mother, and'natural guardian of the children, and she was inf.itled, as one of the heirs of the intestate, to a third part of the real estate in fee simple; and on the death of one of the other heirs, she be-Game intitled to one third of the share of that heir, unless other, wise disposed of.
    The Bank loaned the money in question on the authority of the decretal order of the Court. To overturn this mortgage, would be a rescission of the decretal order of the Court, in which the Bank confided. If such a mortgage or sale should be set aside, it would unsettle the titles of a great many purchases under sales made by the master. The mischief would be too extensive and intolerable. I do not therefore feel at' liberty to declare these transactions void, and to interpose the authority of the Court to prevent the enforcement of a mortgage made by its authority. Certainly the Court will not be active to produce sucb effects.
    But it is alleged, that the mother of the complainant did not employ the money borrowed from the Bank in the payment of the debts of the estate, or even of those contracted for the support of the heirs, but to her own uses and purposes, and that the master did not control her in the application of the money to those purposes, as he was bound to do. The complainant has certainly a right to make inquiry into this ; so that the blame, if any, and the responsibility, should fall on those, who have not pursued the course recommended by the master, and ordered by the Court: but the Bank was not bound to see to the application of the money, and cannot be affected by the result of the inquiry.
    It is therefore ordered, and decreed, that the bill be dismissed as to the Bank; and that with respect to the other defendants, Mrs. Godfrey, and J. V. Spencer, the case be referred to the master, or commissioner, as the parties may select, to examine and report as to the application of the money borrowed from the Bank.
    The complainant appealed from so much of this decree as dismissed the bdl against the Bank, and now moved that the same might be reversed.
    Pepoon, for the motion.
    The Court of Equity possesses no lawful power, or authority, to sell, and much less to mortgage, the property of the citizen ; and the title of the master', in fact, conveys nothing. Where a sale is ordered m equity, the proper mode of giving title is by acting on the parties, and compelling them to convey ; nor are the rights of even infants divested, otherwise than by ordering them to join in a conveyance on comiBg of age. Sugd. Vend. 248, 9. 1 Harr, Ch. Pr. 444, 435. Roll.». Roll, 2 Vern. 99. Ratcliff v. Roper, 1 P. Wms. 420. And see 2 Bridgman’s l)ig. Title Infant, 6. This is the practice of the English Chancery, which was prescribed as the rule for the government of our ^0111^ on 'ts fb'st organization; and that rule has been continued by every statute relating to the subject, which has been enacted since. See Act of 1721, P. L. Ill, Act of 1784, P. L, 387, and Act of 171)1, 1 Faust, 29. To order the master, therefore, or any third person, to convey the property of the suitor, is neither more nor less than a plain and palpable usurpation.
    But admitting the power of the Court to convey, yet it was never before pretended, that the conveyance of the master affected the rights of any but the parties to the cause: and here the present complainant was not a party to the proceeding, which was a mere petition, and altogether ex parte; and she therefore cannot be bound either by the order, or the mortgage made in virtue of it. It is no answer to say, that the Bank confided in the order of the Court; for it is the business of the purchaser to see, that all parties, whose interests are involved, are properly represented. 1 Mad. Ch. 443. Bennett v. Hamill, 2 Sch. &a Lefr. 577. This was not done in the case now under consideration. Indeed the whole proceeding was loose, and irregular, from beginning to end ; and the Bank not only lent its money under an order, to which the heirs were not parties, but were content to take the mortgage of the master, when the order directed it to he executed by the administratrix, herself.
    ■ Besides, the complainant was, and still is, an infant; and an infant is not finally bound by a decree made during his infancy, but is intitled to shew cause against it, on attaining full age. Fountain v. Caine and Jeffs. 1 P. Wms. 504. Napier v. Effingham, 2 P. Wms. 401. Bennet v. Lee, 2 Atk. 531. And he is not obliged to wait until he comes of age before he does so. Richmond v. Tayleur, I P. Wms. 737.
    The eomplainaut in the present case is clearly intitled to avoid the mortgage, unless it be shewn, that the money borrowed was applied to purposes, for which the land mortgaged was legally liable ; and his. honor erred in founding bis decree upon the supposition of there being no proof, that there were no debts due by the estate. It was for the Bank, in the first place, to shew the proper application of the money, in order to give validity to the mortgage; and in the second place, the application itself was a matter of account, and reference, and not of evidence to be adduced at the hearing. But, in fact, it was conceded by the counsel for the defendant, that the money had been applied to the private use of the administratrix ; and a reference was waived, expressly on that ground. -
    Legase, Attorney General, contra.
    
    It is too late to question the power of the Court to order a sale, or mortgage, of the real estate of miners, and other persons under legal disability. It may be admitted, that the English Chancery never pretended to any general power of this sort. Taylor v. Philips, 2 Ves. 23. But there are reasons for this, which do not apply to the state of things in this country: first, the feudal origin and character of the law of land property: second, the great value and permanency of that sort of property, and its settled price ; so very different from the condition of the same kind of property here: third, the gradual manner in which the chancery jurisdiction sprang up : fourth, the effect of a special act of parliament in giving validity to conveyances, otherwise void, or voidable ; a power with held from our legislatures by all-our constitutions, but which must exist somewhere.
    And yet even the English Courts do sometimes exercise an analogous jurisdiction : as, for instance, to compel trustees to join in destroying contingent remainders ; as was said in Moody v. Walters, 16 Ves. 288. So a wife may be compelled to join the husband in levying a fine to bar her inheritance. Luttrell v. Olmius, cited 11 Ves. 638. This is a strong case; and see other cases collected in 1 Thomas’ Co. Litt. 181, note P. See also Co. Litt. 171, a, b, as to infants and married women being bound by partition.
    But if the English cases gave no color whatsoever to the established practice of this Court, no discreet lawyer would think of drawing it into controversy at this time of day. It has been established among us as long as there is any trace of a judicial record. It has prevailed to an indefinite extent. Public opinion has conformed to it: contracts without number depend upon it: and to overrule it now, would be to shake half the titles in the lower country.
    One of the very first of our reported cases, that of Dinekle v. Timrod, 1 Desaus. 109, decided in 1784, is an instance of the exercise of this jurisdiction to direct a sale of. the lands of an infant. The cases of De Brahm v. Fenwick, lb. Ill, and Clifford v. Clifford, lb. 115, are other instances of the same sort; In Carmichael v. Abrahams, lb. 114, a lien was created by a decree. In Ernst v. Tharon and Muller, lb. 115, money was ordered to be paid into the hands of the master, to bo by him put out to interest, on security, subject to the further order of the Court. In Ex parte Gibbes, lb. 126, on a mere petition, defendant was ordered to account for sixty-four negroes. The caseof Fa paría, Fen wick, on the same page, is an instance of a petition to be allowed to sell, or mortgage lands ;' which was- accordingly ordered. In another case, at page- 136, of the same book, the lands of a lunatic were-ordered to be sold, and that upon a mere petition. So much for-the objection to the petition in this case.
    The unpublished records of the Court would furnish innúmera.ble other cases; for scarcely a term has elapsed without a decre-tal order disposing of real* estate : and such orders are among the most “ common assurances” of the people. It is not material to. ascertain the foundation upon which this jurisdiction was assumed*Its origin might perhaps be traced to the circumstances of early colonial times, when the functions of a- Court of Chancery were* exercised by the Governor and Council, who possessed legislative, as well as judicial powers. But it is sufficient, that the jurisdiction has been exercised from time immemorial in this State ; and independently of the necessity of such a jurisdiction being lodged somewhere, it has been too long established in the Court of Equity to be now denied.
    
      Communis error facit jus. And this is most especially so,, where titles are concerned. See the strong language of Lord Macclesfield, in Wagstaff v. Wagstaff, 2 P. Wms. 258. Compare 1 Sand. Uses and Trusts, 95, Sugd. Pow. 84, and Goodill v. Brigham, cited in Cox v. Chamberlain, 4 Ves. 637.
    In Burgess v. Wheate, 1 Eden, 224, Lord Mansfield, speaking of there being no dower of a trust, says ; “ the case of dower is the only exception, and not on law, or reason, but because wrong determinations had misled in too many instances to be now set right.” See also what is said at page 230.
    Calder v. Bull, 3 Dali. 386, is a strong case to the same effect. And the Courts of this State have said the same thing over and over again. Assignees of Topham v. Chapman, 1 Mill. 286. Galt v. Lewis, 1 Treadw. 160. Lester v. Graham, 1 Mill, 182. Adams ads. Wylie, 1 N. & M. 80.
    Add to these cases, what is said by Lord Ellenborougb, in Isherwood v. Oldknow, 3 Maulé & Selvv. 397 ; and by Lord Eldon, in Maundrell v. Maundrell, 10 Ves. 246.
    And if this principle be acted on in England, so uniformly, and sacredly; where the terrible effects of a decision contrary to the opinion of the profession, and established practice, and usage, may be prevented by an act of parliament, acting, like the decision, retrospectively; what shall we say here, where there is no remedy for one of the greatest evils that can befal a country ? For such •decisions havo all the effect of eos post facto legislation, and are ¡acts of confiscation by wholesale.
    Nor is there any thing new in a Court’s gaining a jurisdiction, which, in strict theory, does not belong to it, by long acquiescence. Many heads of chancery jurisdiction sprang up in the same way, as the jurisdiction now complained of: e. g. Specific perform, anee, per Lord Erskine, in Halsey v. Grant, 13 Ves. 76, Alley v. Deschamps, lb. 228. Account, Id,, Middleton v. Dodswell, lb. 268. Guardianship, Co. Litt. 88, b, Hargrave’s note 16. (70.) Partition, Co. Litt. 169, a, Hargrave’s note 2. (23.) 1 Thomas’ Co. Litt. 712.
    So, and this is very much in point, the Irish Chancellor orders the sale of lands for satisfaction of creditors. O’Fallon v. Dillon, 2 Sch. <Sz Lefr. 19. And from the case of Bennett v. Hamill, lb. 567, it appears, that the conveyance is made by the master in conformity to our practice. In the latter case it is to be remarked, that a purchaser was held not to be affected, although the decree, under which the land was sold, had been obtained by fraud, and collusion between an alleged creditor and the guardian of the in. fant.
    Even Courts of Law have enlarged their jurisdiction in the same .way : as in the case of co-sureties for contribution, Cray, thorne v. Swinburne, 14 Ves. 164; lost bonds, &c.; and set-off, without action. Hood v. Huff, 2 Mill, 163.
    Add to these the recent decision, that by the established practice, Courts of Ordinary may appoint guardians of the persons and property of minors. Howard v. Faber, 2 M’C. Ch. 446.
    So much for the law, and settled practice. The policy of the country is decidedly in favor of the jurisdiction, which is a necessary, and, when properly exercised, a paternal, and salutary one. Infants may sometimes be ruined by being compelled to hold their lands.
    Besides, personal property is far more valuable with us than real estate; and yet, no complaints are made of the power of the Chancellor, or the Ordinary, to dispose of that. And the administrator may, by a plea of plene administravit, and even without it, subíect tbe lan<3 of the infant heir to sale under execution. Martin v. Latta, 4 M’C. 128.
    But it is said, that the infant has a right on coming of age to sbew cause against a decree affecting his title to land. It would be a sufficient answer to this to say, that such a thing is unheard of in this State, in any case, and that in cases like the present it would amount to a denial of the whole jurisdiction. - But the principle of the cases, in which the infant is allowed to shew cause against a decree in England, will not reach cases like this ; for he is limited to shewing error in law. Thus in Mallack v. Gallon, 3 P. Wms. 352, it was held, that where there has been a decree of foreclosure against an infant, he may, within six months after coming of age, shew error in the decree, yet he cannot unravel the account. And there is no doubt, but that he is bound by a decree for the sale of his estate. Booth v. Rich, 1 Vern. 295.
    It is contended, however, that if the Court does possess the power to dispose of the real estate of infants, it was .not regularly exercised in this instance; and that the infants are not bound by the mortgage, because, they were nol parlies to the ‘petition.
    To this it may be answered, that the infants were parties, to all substantial purposes. Suppose the mother to have sued as their next friend, or as their official guardian, for maintenance. The Court would have directed maintenance. This is a-common case, and it is the very case before the Court.
    Infant distributees are not personally parties when application is made by the executor, or administrator, to the ordinary for a sale of the personal estate ; but they are virtually parties, because, as to the personal estate, they are represented by the executor; or administrator.
    It is, too, a common case in Equity, to order a sale of real estate for payment of debts, upon the petition of the administrator. And it is a most beneficial jurisdiction, as it serves, frequently;- to prevent a sacrifice at the sheriff’s sale. In such Cases the'Court probably considers the administrator as representing the heir, by virtue of the st. 5 Geo. 2, c. 7, P. L. 250, making lands assets. That he does represent the heir in 'the Courts of law; is unquestionable ; for it is only upon that ground, that lands are suffered to be sold under execution against the administrator, without making the heir a party. Martin v. Lattá, (supra.) With how much more reason may he be so considered in this Court, which of itself guards the rights of infants, and will look into the circumstances of the estate, and the advantage, or necessity of' sale.
    
      In an adversary suit as to title, the infant, not being a party, would not be estopped; but where the Court is called upon as guardian, or trustee, of an infant, to order the admitted property of that infant to be sold, or invested more profitably, all that should seem necessary would be, that the Court should be well satisfied, that it was promoting the interest of the parties. It is a part of the administrative, and not of the judicial power of a Court of Equity ; and undoubtedly ought to be exercised with great wariness and circumspection. But confidence, after all, must be reposed somewhere ; nor is such a power at all more dangerous as to real, than as to personal estate, in which it unquestionably does exist.
    It would have been more formal, and regular, perhaps, that the proceedings should have been by bill and answer, and that the infants should have been represented by guardians ad litem; but would this have given the infants, substantially, any additional protedien 1 Would it not have been the merest matter of form; and could it have affected the result, otherwise than by increasing the costs ? The Court evidently regarded the infants as parties in interest to the proceeding ; and the decree was made with reference to their interests. It was intended to eonvey their title, and it was assumed, that they were properly represented. If no one but the' administratrix were concerned, the aid of the Court would not have been needed. The reference to the master, could only have been ordered on-the ground, that the interests of those intitled to the land were involved ; and it was in effect a-part of the judgment of the Court, that the administratrix did represent them.
    Admit, however, that there was irregularity, the mortgagee is not to be prejudiced by that. The Court had jurisdiction; and the order directing the land to be converted into money, or to be mortgaged to raise money, for-the benefit of the cesluy que trusts, was all that he was bound to look to. It is in vain to say, that the master reported erroneously, and that the' Court was deceived. To render the mortgagee responsible for that, would be to set afloat every act, and every judgment, of every Court.
    In England, the Court does not usually make any decree by consent, where infants are concerned, without referring it to a master to inquire, whether it will be for their benefit; but when once the decree is pronounced, although without that previous step, the authority is the same, as if it had been referred to a master, and he had made a report that it was for their benefit. Wall v. Bushby, 1 Bro. C. C. 488.
    
      The same ru^e ^as ^een acted on by our Courts of Law very frequently. A purchaser is not bound to look to the regularity of the proceedings. Barkley v. Screven, 1 N. & M. 408. So a sale ^anc^ was held valid, although the sheriff did not advertise Conformably to the act of 1797. Turner v. M’Crea, lb. 11. See also The State ads, Wakely, 2 N. & M. 410, and Guignardw. Glover, Harp. 463.
    In relation to the acts of Courts, the presumption is, that all things have been done, that ought to have been done. M’JDaniel ads. Richards, 1 M’C. 187. And so too, where executors were authorized to sell at public sale, their deed was held good, without shewing that the sale was public, and that was presumed. Turnipseed v. Hawkins, 1 M’C. 272.
    In Curtis e. Price, j¡.2 Ves, 89, it was determined, that a purchaser under a decree is not affected by irregularities and defects in the decree, by which the application of the money may not have been properly secured. In another case, a purchase under a decree, though affected by irregularity and notice, was not set aside in favor of a subsequent remainderman ; á prior tenant in tail having been a party. Lloyd v. Johnes, 9 Ves. 37.
    As to the objection, that the mortgage was executed by the master, instead of the administratrix, it is sufficient to say, that according to the settled practice of the Court, the master is the proper person to execute all conveyances which derive their validity from the decree of the Court. And it is a mistake to suppose, that in this case the mortgage was directed to be executed by the administratrix, She was authorized to borrow the money, and to mortgage the land ; but all was to be done under the direction of the master, and he was, regularly, the person to execute the mortgage.
    Finally, it is argued, that the mortgagee was bound to look to the application of the money and that the validity of the mortgage depends upon shewing that the money was properly applied. Such is not the rule of this Court. In this State a purchaser is never bound to see to the application /of the money. Lining t>. Peyton, 2 Desaus. 375. This is good law for us. See Balfour v. Welland, 16 Ves. 155, where Sir William Grant shews the impolicy and absurdity of the English doctrine on the subject.
    Pbpoon, in reply.
    If the power of the Court, to dispose of the property of its suitors, be conceded, as established by long usage, yet certainly no such inveterate practice can be asserted for the exercise of such a power over the property of those who are not suitors. This at least is new. A decree can lawfully operate only on the title of those who are parties before the Court; and if a practice has begun, of disposing of the estate of the heir, on the petition of the administrator, without making the heir a party, the sooner its progress is arrested the better. It is alike inconsistent with the principles which govern the practice of this Court, and with all the analogies of the law. It is in fact a violation of magna charta, and the constitution. ,
    
      
      
         This is not the only instance in which the practice of our Court conforma to that of the Irish Chancery, departing ftom that of the English; as, for example, by decreeing a sale of land for the satisfaction of a mortgage, instead of a foreclosure, in the English sense of the word. M’Donough v. Shewbridge, 2 Ball & Beatty, 555.
    
   Harper, J.

This Court, after full consideration, concurs with the Chancellor, and his decree is therefore affirmed.

Johnson, J., and O’Neall, J., concurred.

Decree affirmed.  