
    *Parker & als. v. McCoy & als. Same v. Same.
    January Term, 1854,
    Richmond.
    (Absent Daniel, J.)
    i. Sale of Small Inheritance — Statute—Construction,— The act, 1 Rev. Code of 1819, ch. 96, § 20, p. 358, Supp. Rev. Code, ch. 149, § 2, p. 208, authorizing' the sale of lands, where the interest of each joint owner.is less than three hundred dollars, refers to the estimated value of each interest if the land is divided, and not the value of each interest in the estimated value of the whole.
    a. Same — Same—Same—Case at Bar. — If the value of each interest in the land divided in kind is less than three hundred dollars, the court has authority under the statute, to sell the land, though the estimated value of the whole land will give to each owner more than three hundred dollars.
    3. Infants — Estimation of Interest in Land — Dower Interest of Widow — When Infant’s Land Sold. — The land in the possession of a widow for life as her dower, need not he estimated in ascertaining the value of infants’ interest in land; hut the land in possession of the infants may he valued, and if of less value than three 'hundred dollars, may he sold, without selling the land in possession of the widow.
    4. Same — Sale of Smalllnheritance — Service of Process  —It is not necessary to summon the infant owners in a proceeding to sell their land under this statute; but tlie court may appoint a guardian ad litem to defend them.
    5. Same —Same—Decree Binding without Day in Court.  —In the proceeding under this statute the order or decree of the court is conclusive upon the infant, and he has no day in court to show cause against it upon coming of age.
    
      6. Same — Same—Decree Giving Infant Day in Court— Bona Fide Purchaser. — Though the final decree gives the infant a day in court, this will no.t entitle him as against a bona .fide purchaser of the land under the decree of the court, to disturb the sale.
    7. Same — Same—Procedure.—Though the proceeding under this statute may be and usually is by bill, it is not necessarily so, but may be by petition or motion, and the parties being summoned the evidence may be heard in court, and the necessary orders and proceedings may be made and had thereon.
    Some time previous to May 1834 William C. Burton of Albemarle county departed this life, leaving a '*widow, and four children, Frances who was married to Daniel F. McCoy, Susan, William and Flizabeth Burton; all of whom were infants; and Joseph Bishop qualified as his administrator. In May 1834 Mrs. Burton filed her bill in the County court of Albemarle for an assignment of her dower; and the commissioners who were appointed to lay it off, reported that the real estate consisted of two lots of ground in the town of Charlottesville, on one of which there was a brick house valued at seven hundred dollars, and on the other there was also a brick house and tan yard valued at two thousand dollars : and they allotted to the widow the brick house on the last lot, by metes and bounds; and there were three slaves of which they allotted one to the widow. This report was afterwards confirmed by the decree of the court in August 1834.
    In the same month of August 1834 Daniel I). McCoy and Frances his wife filed their bill in the County court of Albemarle against Bishop the administrator and the heirs of William Burton, for a sale of the real estate and slaves belonging to the heits of Burton not assigned to the widow. They charge that the real estate is incapable of division without great injury to the parties; and if divided the share of each heir would be of less value than three hundred dollars.
    The administrator answered consenting to a sale of the slaves; and a guardian ad litem was appointed to defend the infants, who filed an answer for them submitting their rights and interests to the protection of the court. The bill and answers seem to have been filed at the same term of the court; and no process was issued or served upon the infant defendants. At the same time two commissioners were appointed to value the real estate, except that assigned to the widow, and to report whether it could be divided into four equal parts: And Bishop was directed to sell the slaves. ^During the same term of the court the commissioners returned their report, in which they say that it is certainly true that the lots can be divided into four equal parts: But that in their opinion, the interest of all the parties concerned will be injuriously affected by such a division. They estimate the house and lot at five hundred dollars, and the balance of the tan yard lot at eight hundred dollars ; but if the property is divided into four equal parts, it will not be worth more than one thousand dollars. This report was confirmed, and a commissioner was appointed with directions to sell the property in the mode and upon the terms stated in the decree.
    At the November term of the court the commissioner reported that he had sold the tan yard lot to Marshall & Bailey at the price of nine hundred dollars, and that Bishop had purchased the other house and lot for séven hundred and eighty-five dollars. This report was confirmed, and afterwards in October 1835, the purchasers having paid the purchase money, the commissioner was directed to make to them conveyances ; which was accordingly done; anda day was given to the defendants to show cause against the decree.
    William Burton having come of age in 1844, Mrs. McCoy having died without children surviving her, Susan having attained age and married Isaac Ong, and Elizabeth being still a minor but married to John W. Parker, the children then living applied for leave to file answers in the cause and impeach the proceedings. The County court overruled the motion; and they obtained an appeal to the Circuit court, where their motion was sustained; and the cause was retained in that court to be proceeded in there. They then filed a cross bill in the cause. Both in their answer and in the cross bill they object to the proceedings on various grounds: First. That the sale showed that the share of each infant was worth more than three hundred ^dollars. Second. The property allotted to the widow was not taken into the estate, and that William C. Burton held another lot at his death, for his death, for which he had paid, but had not received a conveyance; and Bishop had sold it to Hawkins, and had directed the conveyance to be made to him. Third. That the heirs had not been summoned to show cause- against the sale as is required by the statute.
    There were other matters alleged in relation to certain deeds executed by McCoy and wife to Bishop and Bailey, but they are of no importance as to the questions considered by the court. The purchasers and Bishop were made defendants, and the purchasers answered; and a good deal of testimony was introduced into the cause, which however it is unnecessary to state. The cause came on to be heard in December 1846, when the court affirmed the proceedings and decrees in the cause in the County court, and dismissed the cross bill, with •costs in both cases. From this decree the heirs applied to this court for an appeal, which was allowed.
    Stanard and Bouldin, for the appellants.
    Patton, for the appellees.
    
      
      Infants — Condemnation of Land — Service of Process. —In condemnation proceedings under the statute, ch. 42, Code of W. Va., it is not necessary for infant owners to he served with notice of the application, but tlxe court may appoint a guardian ad litem to defend the interests of the infant. Charleston, etc., Bridge Co. v. Comstock, 36 W. Va. 263, 15 S. 13. Rep. 69, citing the principal case at page 72. See also, Alexander v. Davis, 42 W. Va. 465, 26 S. E. Rep. 291.
      In Myers y. Myers, 6 W. Va. 370, it is said that an infant can only make defence by a guardian ad litem, and one should be appointed by the court for that purpose, citing Parker v. McOoy, 10 Gratt. SOI.
      
      See monographic note on "Infants’ appended to Caperton v. Gregory, 11 Gratt. 505.
    
    
      
      Same — Sale of Small Inheritances — Decree Binding.— in Zirkle v. McOue, 26 Gratt. 529, it is said: “In this state the rule seems to be well settled, that whenever the court is asked to sell and convey an infant’s inheritance, he is entitled to an opportunity of making a defence at any time within six months after he arrives at full age. The only exception to this rule is found in those proceedings in equity under the statute for the sale of small inheritances of less value than three hundred dollars. Parker & als. «. McCoy & ais., 10 Gratt. 694."
      
      See monographic note on “Infants” appended to Caperton v. Gregory. 11 Gratt. 505. See principal case cited in Lafferty v. Lafferty, 42 W. Va. 785, 786, 26 S. 13. Rep. 263.
      Judicial Sales — Setting Aside — Purchaser Must Be a Party. — In Estill v. McClintic, 11 W. Va. 424, it is said: “The purchasers at such sales (sales under decree of court), or their representatives, should be sum-monea to answer these petitioners: all the evidence bearing on the j ustice or propriety of the sales should be heard, including evidence as to the value of said lands when sold, and what improvements on them had been made by the purchasers, and what taxes paid by them, as also what rents and profits had. been received from them; and the court should then, with all the facts and parties before it, do justice by setting aside the sales on such terms as are right, or by refusing to set them aside. This was the course pursued in Londons v. Echols et al„ 17 Gratt. 15; Hughes et use. v. Johnston, 12 Gratt. 479. See also, as Indicating that this is the proper course to be pursued, Pierce’s Adm’rs v. Trigg’s Heirs. 10 Leigh 406; Parker v. McOoy, 10 Gratt. 691; and also, the cases Bank of the United States y. Ritchie, 8 Pet. 128; Coger v. Coger, 2 Dana 270: McKee’s Heirs v. Hamm. 9 Dana 520: Parker's Heirs v. Anderson’s Heirs, 5 Mon. 445. In Huston’s Adm’r v. Cantril, 11 Leigh 136: Cocke’s Adm’r v. Gilpin, 1 Rob. 26; and Buchanan v. Clark, 10 Gratt. 164, no supplemental proceedings were taken, because the purchasers were in those cases already parties in the causes. Here they are not, and supplemental proceedings must be had, before their rights as purchasers can be adjudicated."
      The principal case is also cited in Londons v. Echols, 17 Gratt. 19, and foot-note-, Heermans v. Montague, 2 Va. Dec. 18; Dunfee v. Childs, 45 W. Va. 165, 30 S. 33. Rep. 106.
    
   DEE, J-

The proceeding complained of in these causes was one taken under the second section of the act of January 14, 1829, authorizing in certain cases, the sale of small inheritances. Supp. Rev. Code 208. It provided for a sale by order of the court, where any one of the heirs of any ! estate descended should be an infant, feme covert, non compos mentis or beyond sea, and the dividend of each heir, in the opinion of the court, should not exceed the value of three hundred dollars; the proceeds of sale to be distributed among those entitled. This provision was first enacted in 1790, and constituted the first section of an act amendatory of *the law of descents. 13 Hen. Stat. 122. By this act the sale was authorized where the dividend of each heir did not exceed thirty pounds. It was re-enacted in 1792, (the sum named being one hundred dollars,) and constituted the twentieth section of the act of descents then passed. 1 Rev. Code 1814, p. 237. At the revisal of 1819, it was again enacted in nearly the same terms; but the power to sell was extended to all cases in which the dividend of each heir should not exceed three hundred dollars; and ■it constitutes the twentieth section of the act of descents. 1 Rev. Code 1819, p. 358. By the act of February 27, 1828, the section was repealed; but in the following year it was re-enacted in the same terms. Supp. Rev. Code, p. 208, 224.

The construction of the clause defining the cases in which the power to direct the sale is to be exercised, is now presented for consideration for the first time in this court; and the question arising in this case is, Whether by the “dividend of each heir,” which is not to exceed the value of three hundred dollars in the case in which a sale is authorized, is meant the share of each heir in the estimated value of the property taken as a whole, or the estimated value of each share of the estate, if the same were to be equally divided among the heirs of the decedent.

It appears that the commissioner to whom the subject was referred by the court, reported that the property of which Burton the-intestate died seized, (excluding the part assigned to the widow for her dower,) was in their opinion taken as a whole and undivided, worth thirteen hundred dollars; a sum which, divided among the four heirs, would give to each more than three hundred dollars. But they stated in addition, that while the property was susceptible of being divided into four equal parts, yet by such a partition the interest of all parties would be injuriously affected, ^because in their opinion each share, if so divided, would not be worth more than two hundred and fifty dollars.

In many cases of estates descended, the estimated value of the shares of all the heirs, supposing an equal partition to be made, is greater than that of the whole property divided. In others, there is little or no sensible disparity in the estimated values of the property, divided and undivided. This case falls within a third class, in which the value of the estate is so lessened by partition, (according to the estimate made,) that each heir would get a portion of property worth less than three hundred dollars, while if a sale of the whole be made, he will get upwards of that sum in money.

It is possible that the policy which the framers of this section had in view may have been, in part, to avoid the evils which have been elsewhere, and especially in Prance, so sensibly felt, of minute subdivisions of lands by repeated and successive partitions of small inheritances among- the heirs of those dying possessed of the same. But it cannot be doubted, I think, that the chief object was to promote the interest of the heirs; it being assumed that where an estate descended was of so inconsiderable value as those contemplated by the provision, it would be more to their interest to sell it and divide the money than to make partition. Now where the estimated value of all the shares, if the property be divided, would be equal to what it would bring if sold under the order of the court, no question could arise if each share were less than the prescribed sum. But where the estimated value of each share, if partition be made, would be greater than the amount which each heir would receive if the property were sold, if the former exceeded three hundred dollars, though the latter might be less than that sum, I think it would be clearly not a case in *which the court would be authorized to direct a sale; because the main object of the law, to wit, to promote the interest of the parties entitled, would be thereby defeated. On the other hand, where the share of each heir, if partition were made, would be of less value than three hundred dollars, I think the court might properly direct a sale, notwithstanding it might be of opinion it would bring a sum which would yield more than three hundred dollars to each party entitled to distribution. Nor would the validity of the sale be in any manner affected if it should turn out that the land actually did bring such a sum. It was clearly not the intention of the act that the land should be sold for less than the greatest sum it would bring; and although this might be sufficient to yield more than three hundred dollars to each heir, that amount would not be the test of the court’s jurisdiction ; the true criterion being the opinion of the court before the sale is ordered as to the probable value of each share of the land, if the same were divided in kind, when sold separately. And although it might be made to appear in some, subsequent' proceeding that the court was mistaken in its opinion, and that each share, if sold separately, would have been worth more than three hundred dollars, yet, assuming that no fraud is justly imputable to any party, and that that opinion was fairly formed upon reasonable grounds, and with such lights as were before the court, I cannot think that a fair purchaser should be afterwards disturbed.

The cases to which I have thus referred as constituting the third class, are. I think, peculiarly fit for the exercise of the power conferred by the statute, and present a state of' facts to which the law was exactly intended to apply. Not only the supposed general advantage of converting an inconsiderable real property into money is secured to the parties, but the particular *advantage of an enhancement of the value of their estate. And that their interest is mainly to be consulted, as has been already intimated, I can perceive no reasonable ground to doubt. If it were made to appear, in any given case, that it would be plainly to the interest of the heirs that the property should be retained, surely the act is not so imperative in its terms that the court would feel itself required to direct a sale.

The case put by the counsel, in illustration of what he regards as the fallacy of the construction he is resisting, is not,-I think, at all apposite to the present case. He puts the case of a manufacturing mill worth thousands, if sold entire, but which, if divided in kind among several parties, would be rendered valueless. Such a property is not susceptible of a division in kind, in any just or beneficial sense, and a different mode of making partition must be adopted. Whether in the case put a sale could be resorted to, I undertake to express no opinion. In the case we have it abundantly appears that a division of the property in kind might have been made, though such a division would have been attended with a sensible diminution of its value.

The interpretation of this statute thus indicated is, I think, the soundest and most rational, and so far from- doing violence to its terms, will be found to be in perfect accordance -with them. The term “dividend” is perhaps more frequently used to signify by an extension of its primary meaning, a share in money of a common fund, but it may with perfect correctness be applied to land or any ■ other subject held by several in joint ownership. And if it were intended to use it in this act in the sense of a share in a moneyed subject, (the estimated amount of the proceeds of sale,) the expression would perhaps have been “and the dividend of each heir shall not exceed three hundred dollars,” *or “the sum of three hundred dollars,” or some similar phrase; whereas it is “and the dividend of each heir shall not exceed the value of three hundred dollars:” thus importing a share in kind or thing of a certain value, rather than a sum of money which is itself the very measure and expression of value.

But it is said, the portion assigned to the widow for dower was excluded from the estimate of value made by the court; and that it is now shown there was another lot belonging to the estate, which was not brought to the notice of the court, and its value therefore not estimated; and that before the court could direct a sale, it was bound to estimate the value of the whole estate descended.

Whether the act only authorizes a sale where the share of each heir in the whole estate descended does not exceed the prescribed sum, or whether a parcel such as a particular tract separated from the residue of the lands, may be sold under ity provisions, is a question which may not be altogether unworthy of consideration. Cases may. arise in which it might be highly beneficial to the heirs that a detached parcel of property might be sold and the residue equally divided. But without intimating any opinion on this point, and although the part assigned to the widow for her dower is of course part of the estate descended, it is to be observed that the interest of the heirs in it is but a dry reversion the sale of which could scarcely be contemplated under the provisions of this act. What was intended to be sold, was the subject of which the heirs were entitled to the immediate possession and enjoyment for present comfort and subsistence as soon as partition should be made. Now, whether the case of McClintic v. Manns, 4 Munf. 328, is to be understood as affirming the legal right to demand partition of dower lands among the heirs during the life of the tenant in dower or not, certainly *it has not been the usage in Virginia to make partition of such lands until after the death of the doweress. And it would be extremely difficult if not impossible for the court to form any correct estimate of the value of the reversion in such a case. Besides, the sale of a reversion would generally be at a serious loss, and frequently a great sacrifice, thus defeating what, as already intimated, I take to be the great object of the law. I think the widowjs dower land is, according to general usage throughout the state, properly regarded as not a fit subject of partition, either in kind or by a sale, and that the other lands may be sold by order of the court, without taking the former into the estimate, leaving it to be the subject of future disposition, when it falls in upon the death of the tenant for life.

The omission to include in the estimate the lot near Charlottesville does not appear on the face of the proceeding in the county court prior to the sale, but is set up in the petition to open the order of sale,, filed by the appellants, and in their answers tendered therewith, and in their cross bill and supplemental. It is new matter of defence now set up after the sale has been made and confirmed, by virtue of which it is sought to annul the whole proceeding and reclaim the property.

There would seem to be some want of precision in the authorities.as to the extent to which an infant is entitled to avail himself of the right to appear and make de-fence after he attains full age, even in those cases in which it is absolutely required that time should be reserved to him for that purpose. In 1 Daniel’s Chy. Pract. 205, it is laid down in general terms, that an infant defendant is as much bound by a decree in equity as a person of full age. Therefore, says the author, if there be an absolute decree made against a defendant who is under age, he will not be ^permitted to dispute it unless upon the same grounds upon which an adult might have disputed it, such as fraud, collusion or error. And in the case of a decree | of foreclosure, although a day must be given the infant to show cause against it, he can only do so by showing error. He may not unravel the account, nor is he even entitled to redeem by paying the amount due. Mallack v. Galton, 3 P. Wms. 352; Bishop of Winchester v. Beavor, 3 Ves. R. 314; Williamson v. Gordon, 19 Ves. R. 114. In other cases, it would seem he may obtain leave to amend the answer filed for him, or to put in a new one, showing grounds of defence not before the court, or not insisted on at the former hearing. Bennett v. Lee, 2 Atk. R. 531; Napier v. Lord Effingham, 2 P. Wms. 401; Fountain v. Carine, 1 P. Wms. 504; Stephenson v. Stephenson, 6 Page’s R. 353; James v. James, 4 Page’s R. 115.

But if this matter were now available to set aside the decree, the appellants have failed to make out the case which they allege. There is no sufficient evidence that there was such a lot belonging to the estate as that charged to have been improperly omitted from the estimate. No written evidence of title is exhibited, nor any contract of purchase proven. They prove the execution of an order to Marchant by Bishop as administrator of Burton to make a deed to Hawkins for a lot he had previously conveyed to Marchant. Whether the lot had in fact been purchased by Burton, and if purchased, whether paid for or not, or whether the claim of Burton was in the nature of a lien for a debt which had been paid, or what was the nature of his claim, is nowhere explained. The commissioners, in their report, seem to regard the property valued by them as the whole of the estate. And certainly this order is insufficient of itself to prove that Burton died seized of an estate of inheritance in this lot, which, upon his death, passed to his heirs. Nor *is there any evidence as to the value of this lot, or to show that the value of each heir’s share, added to the estimated value of the share in the other property, would make the value of each share in the whole estate greater than three hundred dollars. The appellants allege, it is true, that this lot was worth about two hundred and twenty-five dollars, and that Bishop had sold it to Hawkins at about two hundred dollars. Of this, however, there is no proof: and even if the sum for which it is said Bishop sold it to Hawkins be assumed as the value at the time of the order for the sale, one-fourth of that sum added to the estimated value of each share in the other property, if divided, would not make it exceed the. prescribed amount. If the price at which the appellant Burton states in his answer his father had purchased the lot of Marchant shortly before his death, be assumed as the fair value, the shares of each heir in the whole estate would still be less than the three hundred dollars. And moreover, if all this were otherwise, yet here the interest of a fair purchaser under the decree is involved, and a grave question arises as to how far his rights are to be affected by any error or irregularity in the proceeding's. There are strong authorities to show that a purchaser under a decree will not be affected by such errors or irregularities; and that he is not bound to go through all the proceedings and look into all the circumstances, and see that the decree is right in all its parts, and that it cannot be altered in any respect. He cannot of course be protected against a title not in issue in the cause, nor against the claims of persons not parties to the cause, and therefore not bound by the decree; but it should seem that he has the right to presume the court has taken the necessary steps to investigate the rights of the parties, and upon such investigation has properly decreed the sale. Bennet v. Hamil, 2 Sch. & Lef. 566; Lutwych v. Winford, *2 Bro. C. C. 248; Lloyd v. Johnes, 9 Ves. R. 36, 65; Curtis v. Price, 12 Ves. R. 89, 101. See also Booth v. Rich, 1 Vern. R. 295; Mills v. Dennis, 3 John. Ch. R. 367. I do not deem it material however to the decision of this case further to prosecute this enquiry, or to express any definitive opinion upon the point involved.

I think there is nothing in the objection that a summons had not been served upon the heirs before the order of sale was made. They were all under age; and it can hardly be supposed the legislature intended that process should be served upon infants. There can be no discrimination between minors of different ages, and none is made by the act; and if it be necessary to serve a process upon any, it must be equally so to serve it upon those of the most tender years, and who would of course be utterly unable to comprehend what was intended, or to make any response after they were so summoned. So idle a form it cannot be supposed was intended to be observed, and we must infer that the heirs intended to be summoned were such of them as should be of full age and qualified to make defence. And this derives countenance from the provision of the act of March 3d, 1827, (Supp. Rev. Code 134,) concerning the sale of the lands of infants at the instance of guardians. This act requires the adult heirs only, in terms, to be summoned.

But if these infant heirs had been summoned they could only have made defence by a guardian ad litem, and one must have been appointed by the court for that purpose. This has been done, and an answer filed submitting the rights of the infants to the protection of the court. This defence was made for the infants in the only way in which it could be made, and it is now wholly immaterial whether a summons had been previously served upon them or not.

There is yet another view of this case going beyond *those which have been already presented, which I think fatal to the pretensions of the appellants.

At common law in actions against infant heirs for debt, at the suit of specialty creditors of their ancestor, either party might pray that the parol might demur: and a similar practice obtained in equit3 where a suit was brought to enforce the legal liability of the heir to pay specialty debts of the ancestor out of the assets descended, whether the suit were brought by the specialty creditor or by a simple contract creditor to marshal the assets. In such a case no decree for relief would be pronounced during the infancy of the heir. Courts of equity went further and extended this protection to the infant in other cases besides those in which the parol could demur at law; and they adopted a general rule by which in cases of foreclosure and partition, and other cases in which the courts were asked to sell and convey the real estate of an infant, and in which the execution of the conveyance was necessarily to be deferred until the infant attained his age, he was entitled to an opportunity after that period, to show cause against the decree ; and a provision was accordingly inserted in the decree reserving the right so to do. By the English statute abolishing the rule for the parol demurring, (1 Will. iv, ch. 47,) provision is made empowering the court in certain cases to compel an immediate conveyance from an infant heir; and there are other statutes giving the court jurisdiction to order the immediate conveyance of an infant’s estate. And in such cases, as well as those in which no conveyance, either in form or in substance, is directed, the infant is held bound by the decree, and no day is given him to show cause after he becomes of age. In all other cases it seems to be agreed, the general rule is that time must be given him after he becomes of age to show cause against ihe decree. And even in a case of foreclosure as we *have seen, time must be given; though in that case, the only cause that can be shown is error in the decree. See Tuckfield v. Buller, Amb. R. 197; Eyre v. Countess of Shaftsbury, 2 P. Wms. 102; Booth v. Rich, 1 Vern. R. 295; Cooke v. Parsons, 2 Vern. R. 429; The Duchess of Buckingham v. Sheffield, Amb. R. 586; Price v. Carver, 3 Myl. & Cr. 167; Mills v. Dennis, 3 John. Ch. R. 367. And such I suppose is the general rule in Virginia where the rule of the parol demurring has been also abolished; for although by the act of December 21, 1818, (1 Rev. Code, p. 204, § 41,) the superior courts of chancery, and by the act of January 1828, (Supp. Rev. Code, p. 178, § 5,) the County courts are authorized to make immediate conveyance of the estate of an infant or any other person, in a proper case, yet by the proviso contained in the first mentioned act it is expressly declared that it was not to be construed to affect the right of an infant or any other person to show cause against the decree within the same time as if it had never passed. But this rule I apprehend is properly applicable to chancery suits proper, inter partes, in which the heir stands as defendant and relief is sought in invitum in respect of property vested in him by grant, devise or descent, and should not be applied to the peculiar statutory proceeding for the sale of small inheritances which we have under consideration. It must be the intention of this act to. make an immediate conveyance of the infant’s estate, and to bind him by the order which it makes for the sale. A different construction would defeat the object which the legislature must be supposed to have had in view. It is of course to the interest of the infant that the property should bring the best possible price, and it is to the public interest that the real estate of the citizen should be properly cultivated and improved. But who would be willing to purchase the land of an infant at a fair price, or to *improve it after he should purchase it, if at a remote period when the infant attained his age, he could come in, rip up the whole proceeding and reclaim the property? The effect must be either to put an end to such sales altogether, or to occasion ruinous sacrifices, still further impoverishing the helpless and needy object of the court’s protection.

There is nothing in this act stamping the measure which it provides with the distinctive character of a chancery suit. The form of proceeding by bill and answer may be a very convenient as it has been a very common one, to obtain the order for the sale; but there is nothing to make it necessary to adopt it. It is true it is to courts possessing chancery jurisdiction the power to direct the sale has been confided: But this may be because it more conforms to those which such courts usually exercise and to their manner of proceeding than to those of the law courts, or because the care and management of infants and their estates seems more appropriate to the former than to the latter. But this act, unlike that concerning sales of infants’ estate at the instance of guardians, does not require that a bill be filed setting forth the facts of the case, on oath, nor that an answer shall be filed on oath by a guardian ad litem, and in certain cases by the infant himself. It does not in terms require any bill or answer to be filed, or any pleadings whatever. The process which it directs to be issued is not the usual subpoena in chancery to answer a bill, but a special summons to the heir to appear and show cause against the sale. The order of publication against any heir that may be absent, is to be inserted in a newspaper; but it is not required to be posted at the court-house door, as in chancery cases proper. No provision is made as there is in the act just referred to, requiring the testimony to be taken and filed in writing; and the minute directions contained in that act are all *omitted in this. Nor is any day directed to be given the infant after he attains his age to show cause against the decree. I think the proceeding is not to be regarded as a chancery suit proper; and that although the form of filing a bill in which the infant heirs may be named as defendants be adopted, yet they are in fact to be regarded as equally actors in the matter, under the protecting care- of the court; and indeed I ■perceive no sufficient reason why the court may not upon a simple suggestion ore tenus, after having caused the proper parties to be summoned, proceed to hear the testimony generally at bar, and if satisfied that the estate is one of the inconsiderable value contemplated by the statute, make the order for the sale in a summary way. In short 1 regard it as one of those special cases in which by statutory provision, authority and jurisdiction are given to the court for special reasons and purposes, to order the immediate conveyance of an estate vested in an infant, and in which he is bound by the order, and entitled to no day after he attains his age to show cause against it. The court judges for the infant and must be presumed to have exercised its judgment honestly -and discreetly; and the infant must be concluded unless he can show fraud, collusion or error. Cases of this character occur in England under the statutes. 1 Will, iv, c. 47, (concerning the parol demurring); 2 Geo. iv, and 1 Will. iv, c. 60, (concerning conveyances of trust estates in certain cases); 4 and 5 Will, iv, c. 23, (concerning escheats and forfeitures of property holden in trust) ; and 2 Vict. c. 69, (concerning transfers of estates vested in the heirs and devisees of mortgagees). They are the same referred to in 1 Daniel’s Chy. Pract. 208, as cases in which no clause giving the infant a day to appear need be inserted in the decree. In Virginia, besides the act under- consideration, similar cases would occur, I presume, under the 13th section of the act of 1819, (1 *Rev. Code 408,) providing for the conveyance of estates vested in infants, in trust or by way of mortgage; also under the 14th section of the same act providing for the making or taking on behalf of an infant, the surrender of a former lease or the making or taking a new one, as the case may require, and perhaps under other provisions of that and other acts.

It is true that by what seems to be the final order made in this cause upon the coming in of a report of the commissioner directed to collect and distribute the proceeds of the sale, time is given the infant defendants after they should attain their age to show cause against the decree. But this will not vary the case. This order was not made until more than a year after the purchasers had bought the property, and the sale had been confirmed by the court. And if the infants were not entitled under -the law to such a reservation, this order cannot have the effect to confer the right to it upon them, nor are the purchasers at the sale to be affected by it.

The decree should perhaps be corrected by declaring it to be without prejudice to the right of the heirs at law of Frances McCoy to require security to be given for the forthcoming of her share of the proceeds of the sale at the death of the said Daniel E. McCoy, if they would otherwise be entitled to demand the same, or to any suit which thej' may be advised to institute for the recovery of her share in that portion of the estate assigned to the widow for her dower; and so amended, I think it should be affirmed.

MO-NCUREÍ and SAMUELS, Js., concurred in the opinion of Lee, J.

ALLLR> J., dissented.

Decree affirmed.  