
    Sarah Jane Long et al. v. Jacob Mulford et al.
    1. It is the duty of a guardian ad litem, to mate for the infant a proper defense, and for this purpose to bring the rights of his ward under the consideration, of the court for decision. •
    ’2. The jurisdiction which courts of equity employ to protect infants, is not con’ fined to cases of a strictly fiduciary character. The principle on which re lief is given, applies to all cases where influence is acquired and abused, and confidence reposed and betrayed. In the former, influence is presumed, in the latter, its existence must be proved.
    5. If a party having an infant under his influence and, control, against whom he is prosecuting a suit in which no defense is made for the infant, intends to insist on the rights of an ordinary advérsary, he ought first to surrender the advantages arising from his fiduciary or quasi-fiduciary character.
    *4. In a suit by bill in equity against an infant for the specific performance of an alleged contract-with his ancestor, he is entitled to a day in court, after coming of age, to show cause against the decree; and if an absolute decree he taken against him it will be error.
    •5. A decree against an infant may be impeached for error by original bill; and what would have been a good cause of action to sustain an original bill, is a good cause of action under the code.
    ■6. Where adult heirs obtained a decree upon insufficient evidence, against their infant co-heirs, of tender years, for a large portion of the estate, as having been purchased from the ancestor, hut which was in fact given by way of advancement, and obtained also a decree for partition of the residue of the estate; and the proceedings were managed solely by the adult heirs — no defense being made for the infants and no day given them to show cause against the decree — the partition will be set aside, and a new partition ordered.
    '7. Deeds, in accordance with the partition, obtained from the infants on their coming of age, in ignorance of their rights, and under representations that the making of the deeds was according to the order of the court, should be set aside as fraudulent. 8. Lapse of time to bar tbe rights of the infants does not, in such case, commence until their discovery of the wrong; and the burden of showing such knowledge as to make them chargeable with laches rests on the defendants.
    Civil action. Reserved in the district court of Butler county.
    The original petition in this case, filed May 13, 1863, sets forth: That John Mulford died in 1840 intestate, leaving as his children and heirs at law, Sarah Jane Long, intermarried with Joseph E. Long; Mary Ann Morrison, intermarried with Robert Morrison; Jacob Mulford, Job Mulford, and David Mulford; and as his widow, Mary Mulford; that Sarah Jane was born in March, 1832, Mary Ann, April, 1835, David in 1812, Jacob in 1815, and Job in December, 1817; that Sarah Jane was married in September, 1860, and Mary Ann in October, 1861; that John Mulford at his death was the -owner of 116 57-100 acres of land in sections 35 and 36, town 3, range 3, between the Miami rivers in Butler county, Ohio; of 85 acres in said section 35; of 15 acres in same- section; of 75 acres in sections 28 and 34, in town 2, range 4, near Middletown ; and of 251 40-100-acres called the “ home farm ” in said section 36; that about the 21st of October, 1843, David, Jacob, and Job Mulford combined and confederated together, to cheat and defraud Sarah jane and Mary Ann, out of their just' shares of said real estate; that for the purpose of carrying out the fraud, Jacob Mulford filed a bill in chancery, in the court of common pleas of Butler county, against the other children *of John Mulford, and the widow, in which he falsely and fraudulently represented, that in consideration that Jacob and Job had each labored for their father several years after they arrived at age, he agreed to divide between them the first three described tracts of lands, amounting in all to 216 57-100 acres, independent of their interest in the “ home farm,” and convey the same to them; and further falsely and fraudulently represented, that for a like consideration, the father, John Mulford, had agreed to convey to David the tract of 75 acres; that he died without executing the conveyances; and that he. was at his death the owner also of the tract of 251 40-100 acres, called the “home farm.” That the prayer of the bill was that Mary Mulford might have her dower assigned in the “home farm;” that partition might be made thereof equally among the five children, subject to such dower; that the title to one-half of the three tracts, of 216 57-100 acres, might be decreed to Jacob. That to the bill in chancery David and Job Mulford answered, and falsely and fraudulently admitted its averments to be true, and asked that the relief might be granted. That at the September term, 1844, of the court, a decree was entered in the cause, adjudging and quieting the title to the 216 57-100 acres in Jacob and Job, and the title to the 75 acres in David; and assigning the dower of the widow in the “ home farm;” and also dividing it equally among the five children, subject to such dower; and forever barring the widow, and Sarah Jane and Mary Ann from claiming any interest in the 216 57-100 ames, and 75 acres. That, the dower was so assigned and partition made, and confirmed at the February term, 1845. That Sarah Jane and Mary Ann were not notified of the pendency of the bill; never appeared in the cause, and that as to them all the proceedings were a nullity; that the decree wasfounded on testimony taken in deposition, of which the present plaintiffs had no notice. That David, Jacob, and JoD further confederating to defraud the plaintiffs, by false representations procured them, upon their arrival at age respectively, to-quit-claim to each of them all their interest in the lands which had been assigned to them in the partition, except the .75 acres. That by the partition proceedings lots numbered one *and. two on the plat thereof were assigned to Sarah Jane and Mary Ann, and also made subject to the whole of the dower; tha^ David, Jacob, and Job also quit-claimed to Sarah Jane and Mary Ann, all their interest in lots one and two. That the quit-claim deeds so executed by Sarah Jane and Mary Ann were made without any consideration, and without any knowledge of their rights in the premises, and in entire ignorance of the partition proceedings ; and upon the false and fraudulent representations of David, Jacob, and Job, that it was right for them to execute the deeds, and that the court had ordered them to do it.
    That the plaintiffs were inexperienced in such matters, and that they resided with these their brothers until the execution of the deeds, and depended upon them entirely for advice and protection. That the plaintiffs had, since their marriage, for the first time learned that they were entitled to an equal interest, with their brothers, in the whole of the real estate; that if there ever was any agreement by the father, John Muiford, to convey the lands to David, Jacob, and Job, as claimed by them, it was intended by him and them to be by way of advancement, and that they should account for the same in the division of his property. That by the' partition plaintiffs only received each one-fifth of the “home farm; whereas, they should have each received one-fifth of the whole. That David, Jacob, and Job have, since the partition, been in possession of and received the proceeds of all the real estate, except lots-one and two in the partition plat; which proceeds were of the value of $10,000. That David sold his share of the “home farm” to Jacob and Job, and the seventy-five acres to Arthur Lefferson, Albert Jewell, and Daniel C. Doty; that Jacob and Job have since sold fifteen acres of the first three described tracts to Henry Shaffer. Plaintiffs ask to have set off to them, each, out of the “home farm,” one-fifth of the whole of the land; that the partition proceedings and quit-claim deeds may be set aside and hold for naught; and that David, Jacob, and Job may be required to account for the rents; that dower may be assigned; and that the other defendants may be required to set up their claims in the premises; and for general relief.
    The answer of David, Jacob, and Job Mulford, denies that ♦John Mulford died seized of the four tracts of land first described in the petition, and avers that before his death, by reason of the agreement stated in the bill in chancery, and the answers filed thereto, they were put in posséssion of said land, and that at John M'ulford’s death they were the owners thereof; denies all fraud with which they are charged, and avers that the matters stated in the bill in chancery and the answers thereto are true; avers that plaintiffs were notified of the partition proceedings by subpena served on them by the sheriff, and that they appeared by John B. Drayer, their guardian ad litem, and by him filed their answer, and that the same are valid and binding; denies that the quit-claim deeds were procured fraudulently, and that the plaintiffs were ignorant of their rights in the premises; and avers that they were well informed thereof; and also that they well knew of the partition proceedings, and the claims of the several parties therein set forth; denies that plaintiffs relied on them for advice and protection as stated; denies that plaintiffs learned their rights for the first time since their marriage; denies that the four tracts of land first described were given them by way of advancement; denies that Mary Mulford is entitled to dower in any of the last-mentioned lands; and they deny all right to impeach the decree in the chaneery cause, on account of the lapse of time, and insist upon this as a defense also. . .
    An amendment to the petition states that since the filing of the original petition the plaintiffs have discovered that on the 23d of July, 1853, plaintiff Mary Ann, with Jacob and Job Mulford, conveyed to one George W. Frost, in fee simple, the seventy-five-acre tract, for the' expressed consideration of $181, and that the deed had been duly recorded in the records of Butler county; that no consideration was in fact ever paid the plaintiff Mary Ann; that she never had any agreement of sale with Frost; that she did not know what she was signing when she signed the deed; that it was obtained by David, Jacob, and Job Mulford from her by fraud, to carry out and complete the fraudulent design stated in the original petition ; that Frost never purchased the premises from any one, and never paid or agreed to pay anything for the conveyance, *but received the title simply at the instance of David, Jacob, and Job; that Frost does not now, and never did claim any interest in the premises; and that the only object of the conveyance was to divest plaintiffs of their title, and cover up the fraudulent designs of the defendants. They ask that Frost may be made a party, etc.
    Frost enters his appearance to the amended petition, but files no .answer.
    An amended answer of David, Jacob, and Job Mulford, denies that the plaintiffs had no notice of the taking of the depositions upon which the decree was founded; they say that the guardian ad litem,, was charged with notice thereof, and that the appointment •of the guardian ad litem, had been duly made before the taking and offering of the depositions; they deny that the deed to Frost was •obtained from plaintiff by fraud, and that she was ignorant of what she was signing; they deny that plaintiff received no consideration for signing the deed; that she was induced to sign it by their advice .and direction; and that their object was to divest plaintiff of her title, and cover up the same.
    The object in making the conveyance to Frost is not stated.
    Plaintiffs in reply deny that the guardian ad litem was charged with notice of taking the deposition; and they deny that this action is barred by lapse of time.
    During the pendency of the proceedings in the district court Mary Ann Morrison died, leaving as her heir at law-James Morrison, who is made a plaintiff.
    The case was heard in the district court on the testimony, and was, on motion, reserved for decision by this court.
    The conclusions of fact from the testimony fully appear in the opinion of the court.
    
      W. G. McFarland (with Thomas Millildn and Stanley Matthews in oral argument), for plaintiffs:
    1. The partition proceeding by which David, Jacob, and Job Mulford had each of them a farm carved out of John Mulford’s estate before division, was founded on falsehood and fraud.
    That the “farms” given to the boys were intended as an *advancement, and with the improvements put, and to be put upon them, respectively, by John Mulford, to be in full of their share of his estate, is established beyond doubt by the testimony.
    The presumption is, that these lands were advancements, and the proof to rebut this should come from the other' side. 22 Geo. 524; 8 Ind. 121; 18 Ohio, 418; Adams’ Eq. 101, 102 (side), and notes.
    The partition proceedings are void, for the reason that the girls were not notified. 8 Ohio, 379; 3 Ohio St. 369; 5 Blackf. 223; 12 Ohio, 272; 20 Ohio, 471; 3 Ohio St. 498; 4 Ohio St. 525; 3 Ohio St. 499; Chancery Acts, sections 5, 8, 69; 9 Ohio, 115.
    The appointment of a guardian ad litem, if one had been appointed, can not give the court jurisdiction over infants not served. 1 Ohio St. 369.
    The defects in service are not aided by the recital of service in the decree itself; and no presumptions can be indulged in against infants. 18 Ill. 551; 25 Geo. 90 172; 13 Cal. 558.
    A decree can not be taken against infants, upon default or with answer, without proof. 8 Ohio, 377, 381; 4 Gill, 370.
    If there was fraud practiced originally, the deeds were a continuance of it. They were procured at once, on their arrival of age, respectively, on the false statement that the court had divided the property “ and ordered the deeds made.”
    
    The relations between these plaintiffs and their brothers were of a fiduciary character, the brothers having not only managed their sisters’ business for them, but the sisters living with their brothers the greater part of the time until their marriage.
    As to impeaching the decree and deeds:
    
      As to the decree: Equity grants relief not only against deeds, writings, and solemn assurances, but against judgments and decrees obtained by fraud and imposition. 1 Johns. Ch. 402.
    So a decree obtained by fraud, whereby the defendant was prevented from making a defense, may be set aside by original bill, setting forth the facts, and that the decree is unjust. 19 Ohio, 448 ; 2 Kernan, 165 ; 1 Johns. Ch. 402.
    *When a decree has been obtained by fraud, the court will restore the parties to their former situation, whatever their rights may be. Story’s Eq. Pl., sec. 426.
    Such is the law as to adults. As .to infants, it has been said that “ where an improper decree has been made against an infant, without actual fraud, it ought to be impeached bj original bill.” Adams’ Eq. 420, side paging; Story’s Eq., sec. 427.
    As to the deeds: No act of a party will amount to a confirmation of a transaction fraudulent as to him, unless done with a full knowledge that he has been defrauded. Murray v. Palmer, 2 Sch. & Lef. 486; Homer v. Fish et al., 1 Pick. 435.
    No act will amount to a confirmation of a fraudulent transaction, unless the party is aware of the fraud. at the time, and -that such act will have the effect to affirm it. 3 Yerg. 369; 3 Wend. 626; 4 Texas, 75.
    Fraud may be inferred from the character of the contract, or-from the condition and circumstances of the parties. 6 Har. & Johns. 435; 1 S. & M. 135; Hill on Trustees, 148, 156; 5 Blackf. 509.
    In cases where confidence has been reposed by one party in another, if a court of equity sees that any acts or stratagems, or any undue means, or the least speck of imposition, or the least scintilla of fraud entered into the bargain, it will avoid the grant. Whelan v. Whelan, 3 Cowen, 537; Brice v. Brice, 5 Barb. 533; Sears v. Sears, 1 Barb. S. C. 408; 2 Seld. 268.
    As to lapse of time:
    There is no defense of any statute of limitation set forth in the answer, and if not thus made a specific ground of defense, it will be deemed waived. 13 Ohio, 430; 4 Ohio St. 272; 8 Ib. 215, 423.
    But lapse of time is pleaded, and this may constitute a bar in a court of equity, either on the grou'nd of analogy to the statute of limitations of actions at law, or on that of simple staleness of demand.
    But in cases of this kind, the statute does not commence running until the discovery of the fraud. Longworth v. Hunt et al., 11 Ohio St. 194; 2 Story’s Eq., sec. 1521, 1521a; Ang. *on Lim., secs. 183, 470, 471; 3 Mass. 201; 3 Pick. 74; 8 B. Mon. 113; Story’s Eq. Pl., sec. 754, 815a.
    In the case at bar, it is evident that there was no discovery of the fraud, and that these girl's never understood their rights until they were married, in 1860 and 1861.
    And the discovery must be full. Brookhank v. Smith, 2 Young & Coll. 58; Shannon v. White, 6 Rich. Eq. 96; Raymond v. Simonson, 4 Blackf. 85; Pierce v. Wilson, 34 Ala. 596; Jones v. Rees’ Ex’rs, 4 Yeates, 100; Ferris v. Henderson, 12 Penn. 49.
    The party alleging the discovery has the affirmative, and consequently the burden of proof. Shannon v. White, 6 Rich. Eq. 96; Theower v. Cureton, 4 Strob. Eq. 155; Godbold v. Lambert, 8 Rich. Eq. 155; Blair v. Bromley, 5 Hare, 558 ; Hill on Trustees [169],
    Where there is positive fraud, the longest period will be allowed. Michond et al. v. Girod et al., 4 How. 503; Oliver v. Piatt, 3 How. 333; 4 Dessaus. 651 ; 2 Gill, 163.
    Taking into view the manner in which these defendants obtained title, and the relations of the parties, this would seem to be a case of constructive trust. Hill on Trustees (2 Am. ed.), 197.
    There are no equitable circumstances demanding the bar from lapse of time. Story’s Eq. Pl., sec. 813.
    We ask an order assigning the land, and a judgment against the three brothers for the rents.
    
      A. Gr. Thurman (with Smith & Ghristy), for defendants:
    1. The petition seeks to impeach a decree of Butler common ■pleas, and certain deeds made in pursuance of, or founded upon, that decree, on the ground of fraud in obtaining the decree and deeds. It is, in effect, a bill in chancery to avoid the decree (and as a corollary, the deeds) for fraud in obtaining it.
    It is not a bill of review for errors of law apparent in the record, -or for errors of fact not therein appearing. No assignment of any such errors is made. And such a bill, or petition, was barred by the statute of limitations long before this suit was brought.
    *2. If the decree stand, the deeds must also stand. Be.cause :
    (1.) If the decree was valid, it was proper to make the deeds.
    .(2.) If the decree stand, the plaintiffs would not be benefited by setting aside the deeds. And a court of equity will not do a fruitless thing.
    It follows, that th'e case turns upon setting aside the decree.
    3. To set aside a decree for fraud, it is necessary:
    (1.) That the bill impeaching it state the particular acts of fraud by which it was obtained. Mere general averments of fraud, combination, and confederacy will not suffice. Story’s Eq. Pl. 341, sec. 426, 342, sec 428; Lubis Eq. 231; 12 Ves. [324]; 1 Ohio St. 504.
    (2.) The fraud in obtaining it, as alleged, be proved, before the court will look into the merits of the original case to see whether the decree was erroneous or not.
    (3.) If fraud in obtaining the decree be not satisfactorily established, the court will go no further. The bill must be dismissed. But if that fraud be established, the court will then look into the merits of the case, and if it appear that the decree was correct, it will be allowed to stand, notwithstanding the fraud in obtaining it. And this because:
    
      (a.) The decree being equitable ought not to be disturbed.
    (5.) To set aside a decree because there was fraud in obtaining it, when, without any such fraud, the same decree would and ought to be again pronounced, would be a frivolous and fruitless proceeding. But, as before said, a court of equity will not do a fruitless thing.
    4. There is no proof, certainly no satisfactory proof, of fraud in obtaining the decree in question. And, therefore, whatever may have been the merits in the original case, the present petition must be dismissed;
    And here note what constitutes fraud in obtaining a judgment or decree.
    It is not that the party recovered upon an insufficient cause of action, or upon an insufficient defense. If that were it, every erroneous judgment could be set aside on the ground of fraud.
    
    But fraud in obtaining a judgment or decree consists of *some act of the successful party by which the opposite party was prevented from establishing his claim or making good his defense. Or some act (apart from the mere presentation of a bad case) by which the court or jury was deceived and imposed upon ; as by the production of a forged instrument, or false testimony, knowing the same to be forged or false.. Spiriting away of witnesses, tampering with an adversary’s witnesses, suppression of papers under false pretences when legally required to produce them etc. Or some act that corrupted the fountain of justice itself, as bribery of a judge or juror.
    Now there is nothing of these, or of either of them, or of anything analogous, in this case.
    5. Plaintiffs’ counsel say that the lands were given to the sons by way of advancement. I reply :
    (1.) Were this the case it would simply prove that the decree was erroneous ; not that it was fraudulently obtained.
    (2.) But the fact is not so. The sons received the land upon contract — for a valuable consideration as well as natural love and and affection, and such a case is not advancement.
    6. Plaintiffs’ counsel say that the court had not sufficient evidence before it, to warrant the' decree. I reply :
    (1.) Suppose this were so, it would only prove that the decree was erroneous; not that it was fraudulently obtained.
    (2.) But it does not satisfactorily appear that Kyle’s testimony was the only evidence before the court.
    7. Plaintiff’s counsel say that they were not served with process in the original cause.
    But the record is conclusive that they were served.
   White, J.

The papers in the chancery suit referred to in the petition were introduced in evidence. The bill was filed by Jacob as complainant against David, Job, Mary the widow, and the present plaintiffs, Sarah Jane, and Mary Ann, then infants, the former in the twelfth, and the latter in the ninth year of her age.

The bill sets forth a description of the lands described in the petition in the present case, and states that in consideration that Jacob and Job had labored for their father several *years after they respectively arrived at age, he agreed to divide between them the three parcels of land described, consisting of two hundred and sixteen acres, and to convey tq each his proportion, “ independent of the interest each would he entitled to as heirs after his (the father’s) death, in the home farm.” The home farm is likewise described, and is said to contain about two hundred and fifty acres. It is averred that Job and Jacob were put in possession of their respective parcels hy their father in his lifetime, and that they-had continued in possession ever since.

The bill further represents that a similar agreement for a similar consideration had been made by the father with David, the other brother, in relation to the tract of seventy-five acres; and that the father had died without making the conveyances he had agreed to make, either to the complainant, Jacob, or to the defendants, David or Job, and that they were left without a legal title to their respective farms.

It is stated that the widow is entitled to dower in the lands known as the home farm; and that these lands descended to the complainant, his two brothers, and his two infant sisters, heirs at law, each owning an undivided one-fifth.

The bill prayed that the defendants might be decreed to convey to the complainant title to his tract of land; that the widow’s dower in the home farm might be assigned, and the farm partitioned among the heirs.

On the 19th of September, 1844, the separate answers of David, Job, and the widow were filed. These answers admit the making of the agreement as set forth in the bill; and David and Job pray its execution on their respective behalf; and for partition of the home farm ; and the widow, disclaiming dower in the residue of the lands, asks to have her dower in the home farm assigned.

The journal of the court shows, no appointment of a guardian ad litem for the infant defendants ; but, on the 1st of October, 1844, the day of the filing of the decree, a formal answer of a guardian ad litem, purporting to be made in their behalf, was filed. This answer, the answers of the adult defendants, as well as the bill and decree, are in the hand-writing of the complainant’s solicitor.

*The decree filed in the case finds in accordance with the allegations in the bill, and grants the relief prayed for in the bill and answers.

It adjudges and decrees that Jacob, David, and Job shall each hold in fee simple the premises agreed to be conveyed to them, respectively (describing the premises), “free from any right or claim of the said Mary Mulford (widow), Mary Ann Mulford, and Sarah Mulford, in or to the said tracts, or any part thereof;” and provides “that the said Mary, Mary Ann, and Sarah be forever barred and precluded from claiming the same or any portion thereof, or any interest therein.” Dower is ordered to be assigned in the home farm, and partition to be made, subject to the dower, among the five heirs in equal proportions.

No conveyances are required to be made by the minors on their «coming of age ; nor is there a day given them after that time within which to show cause against the decree, which, by its terms, takes immediate effect, and is in its nature absolute.

The only evidence on which the decree was taken was the deposition of Samuel Kyle, the father-in-law of the complainant, Jacob, taken at the office of the solicitor of the latter, on the 18th of September, 1844, the day on which all the answers of the adult •defendants were written. The deposition was taken under a notice •served only on the defendants who admitted the allegations in the bill, and the service of which they had formally acknowledged •several days before. No notice was served on any one representing the infants. David and Job, whose interests coincided with the plaintiff, but which were adverse to the interests of the infant defendants, were duly notified, as was the mother, who was voluntarily relinquishing her dower. There was no cross-examination. The whole of the testimony is as follows: That'prior to the decease of John Mulford, he [witness] had conversations with him in relation to the disposition of his real estate. Said Mulford told him he intended to give the seventy-five acre tract adjoining Middletown to his son David; and the Bruce and Freeman tracts to Job and Jacob- — Job getting the east part and Jacob the west part of the same. *The said John Mulford stated that Job and Jacob had been and were helping him to pay for the last-mentioned tracts by working with him after they were twenty-one years of •age; and that this was his reason for making such disposition of the same.”

There is nothing inconsistent in this testimony with the several tracts of land mentioned being regarded by the father as advancements to the sons. No contract is spoken of as having been made between him and them for the lands. The father declared “ he intended to give ” each of the sons a designated tract. Job and Jacob had been and were helping him to pay for two of the tracts by working with him after they became of age ; and “ this,” he said, “ was his reason ” for making the proposed disposition of his property. No promise could be implied against the father to pay them either in lands or otherwise for their continuing to live and work with him after they became of age. The consideration, or “ reason,” stated as moving him to make the contemplated disposition, was not .applied to David; yet, the terms used to express the father’s intention that David was to have the seventy-five acres, are as explicit as those used to show that Jacob and Job were to get the other two tracts.

Nothing is said tending to sustain the allegation in the bill that they were, in addition, to get their full share as heirs in the home farm ; and the testimony indicated no more than an intention on the part of the father, in the voluntary disposition of his property, to advance the sons in the way stated.

The deposition 'does not state how long it was before John Mulford’s death the conversation referred to took place. He died in 1840, and at that time Job was in the twenty-third, and Jacob in the twenty-fifth year of his age, and David, who is not- mentioned as having assisted his father by his labor, was in his twenty-eighth year.

In the partition of the home farm, there was set off to David, 55 36-100 acres; to Jacob, 55 58-100 acres; to Job, 55 31-100 acres; to Sarah Jane, 42 36-100 acres; and to Mary Ann, 42 74-100 acres. The lots set off to Sarah and Mary were contiguous tracts, and together made 85 10-100 acres ; *out of which was assigned the whole of the widow’s dower, consisting of 77 42-100 acres: thus leaving to the minors only 7 68-100 acres not covered by the life estate of the widow, and to each one a parcel of less than four acres, of which the use and enjoyment could be had during the life of the widow.

The commissioners to make the partition, were not selected from the noigborhood, but from the town of Hamilton, eight miles distant from the lands.

At the February term, 1845, the assignment of dower, and the partition, as made by the commissioners, were confirmed, and one-sixth of the “ costs and -expenses of the cause,” was adjudged against each of the parties.

The journal entries are very meager — the following being all that the journal contains relating to the cause :

Jacob Mulford v. Mary Mulford et al.
] September term, 1843. j- In chancery. Bill filed. Returned j served.
Parties appear, and cause continued.
Jacob Mulford v. Mary Mulford et al.
] May term, 1844. 1- In chancery. Bill filed. On decree for J sale.
Parties appeared, and cause continued.
Jacob Mulford v. Mary Mulford et al.
I September term, 1844. V In chancery. Bill for partition and ) answers filed.
Parties appear, and cause coming on for hearing, it is ordered, adjudged, and decreed, as per interlocutory decree on file, and cause continued.
Jacob Mulford v. Mary Mulford et al.
I February term, 1845. [ In chancery. Bill filed on decree for J partition.
Parties appear, and cause coming on for hearing, it is ordered, adjudged, and decreed, as per final decree on file.

No subpena, or other process, is found among the papers in the original case. Nor does the final record of the case contain, as the statute required, a copy of such process or of the return of the sheriff showing the manner of service. The following, which comes immediately after the copy of the bill, is all the record contains in respect to process, viz: “Therefore, the sheriff of the county of Butler, aforesaid, is ^commanded that he give notice to the said Mary Mulford, David Mulford, Job Mulford, Sarah Mulford, and Mary Ann Mulford, to be before the judges of our said court of common pleas immediately, at Hamilton, to answer the said bill, etc. And afterward, to wit: the--day of-, in the term of September aforesaid, before the judges aforesaid, here at Hamilton, comes the said Jacob Mulford, by his solicitor aforesaid, and the sheriff of the county aforesaid, to wit, William J, Elliott, Esq., now returns that by virtue of the writ afosesaid to him directed, he hath given notice to the said Mary Mulford, David Mnlford, Job Mulford, Sarah Mulford, and Mary Ann Mulford, to be, etc., on, etc., to answer, etc., as by said writ he was commanded.”

In the cost-bill there is no charge in favor of the sheriff for mileage or service of process, though there is a charge in favor of the clerk for issuing.

A great deal of testimony has heen taken in the case which can not be noticed in detail, but from which it satisfactorily appears that John Mulford, the father, before his death, comtemplated making a family arrangement for the disposition of his real estate, by which he intended to give to his three sons the several farms which they afterward respectively obtained, and to reserve for himself, his wife, and his infant daughters the home farm; that he gave David possession of his farm in 1838, and Jacob and Job possession of theirs, respectively, in 1839; that he aided them to improve and cultivate their farms, by furnishing timber, teams, and in other ways, while he lived, but died before he had consummated his contemplated arrangement, and without having made conveyances; that the lands given to the sons were, in fact, advancements; and that there was no agreement that they were, in case of his death, to share equally with the other heirs in the “home farm.”

On the death of the father, the family living on the homestead consisted of the mother, Jacob, Job, Sarah Jane, aged eight years, and Mary Ann, aged five years — David at that time living on his •own land. No guardian was appointed for the girls. On the subject being talked about in the family, Job thought the appointment of a guardian unnecessary; *and, according to his testimony, “ David and Jacob managed the concerns of the girls first; ” afterward he assisted — rented their lands, accounted for the rents, and did other service, for which no charge was made. Mrs. Mulford states that Jacob and Job together acted as agents for the girls. From 1853 to 1857 she and the girls lived in Job’s family; and afterward, to the time of their marriage, the girls resided with their mother at the homestead. From the death of their father to their marriage, the property of the girls was managed principally by the brothers, among them, and on whom the former relied for advice and protection in regard to their rights and interests.

David’s education seems to have been superior to that of the other sons; and after he came of age he spent considerable time from home in traveling. He went to Europe, in 1836, with the aid of means furnished by his father; spent some time in the south teaching school; and in the spring succeeding his return home in the fall of 1837, he was given possession of his lands. Job in his testimony says: David was at home except when traveling ; can’t say what he did; he superintended some; suppose he more than paid his board.”

The deeds which were obtained from the girls as they respectively came of age, were all prepared by David for execution, without any previous authority from the girls; and were executed by them on the representations of their brothers that the making of the deeds was according to the order of the court; and in ignorance of their rights, and of the fact that any injustice had been done them in the division of their father’s estate. No consideration was paid, or expected to be paid for the deeds. No negotiations were had, and no bargain or agreement was made, or contemplated, in. respect to the making of the deeds. The girls supposed they were merely performing a duty by perfecting, in legal form, undoubted pre-existing rights. And this they might well suppose from the influence it is reasonable to infer their brothers had over them, arising from the relation of dependency, trust, and confidence which had existed from the father’s death, and which still continued to exist between them as brothers and sisters.

*The justice before whom the first deeds were executed and acknowledged, testified that he “went to Jacob Mulford’s at request of David in 1851, to take acknowledgment of deeds; they were prepared; I did not read them; they said they related to the lands; deeds not explained. I asked David if I should read them; he said not that the pai'ties understood them. David professed to-be a kind of attorney and surveyor. Usually read the deeds to the parties; in this case I did not.”

The justice before whom the other deeds were acknowledged had died; and the testimony of the other witnesses was conflicting as to whether the deeds were read and explained to the girls at the time of their execution.

The girls were married — one in September, 1860, and the other in October, 1861; and it was not till after their marriage that they became definitely informed of their rights, and that the lands given to their brothers should have been taken into account in making partition of the home farm.

It appears in the testimony that when the home farm was being divided, “there was much talk in the neighborhood” about it; but the girls were then too young to know anything about their rights, and it does not appear that they were advised in the matter, after arriving at years of discretion, until after their marriage.

Mrs. Mulford, the widow, in her deposition, taken in 1864, states:

“ It has not been more than two or three years since the girls expressed their dissatisfaction and made a fuss.” “I assigned a note of one thousand dollars to them because they were dissatisfied. This was two or three years ago; after they were married.”

This note was given to her by David when the estate was settled, for her share of the chattel property of the estate. He renewed it once, before it was given to the girls, but has paid nothing on it.

In regard to the partition of the home farm, and the institution of the suit for that purpose, Job, in his testimony, in speaking of himself and his brothers, states: “We talked together, and considered that the fences were running down, etc.; and if we had any interest it had better be attended to.”' *By the present action it is sought to impeach the decree rendered by the court of common pleas, at its September term, 1844; and to set aside the deeds obtained from Sarah Jane and Mary Ann on their respectively arriving at age. Our conclusions of fact fully appear in the foregoing statement of the case. The original suit was a bill in equity having a double object: first, the specific performance of the agreement alleged in the bill to have been made between the sons and the father in his lifetime, for the several tracts of land they respectively claimed; and, secondly, the partition of the residue of the real estate among the five heirs, in equal proportions. The extent of the interests of the heirs in the land to be divided was dependent upon the establishing of the alleged contract and the granting of the specific performance. If this relief was granted to the sons, the partition of the residue would be in equal shares; if refused, they would be charged with their respective tracts, in making partition, and their shares in the residue would be correspondingly diminished.

Though, in the form the suit was made to take, Jacob was the only plaintiff, and David and Job were defendants, yet their interests coincided; the suit was brought by a previous arrangement between them; and the claims of all were alike adverse to their infant sisters.

It is doubtful whether process was ever served on the infants; but, if service had been made, it would have made no difference in the degree, considering the tender years of the girls — one under nine, and the other under twelve years of age — and their dependence on their brothers for the management of their affairs. The whole management of the suit would have been left, as it in fact was, to the brothers. No guardian was appointed, and when the appointment of one was talked about, it was concluded none would be necessary. Strangers could not be expected to interpose; and while the brothers maintained their family influence over their younger sisters, and assumed to act for them and to manage their property, they were bound to act with scrupulous fidelity, and can •derive no advantage arising either from intentional misconduct or :gross negligence.

The appointment of a guardian ad litem, is not a mere matter *of form. A suit against an infant can not be prosecuted without such guardian; and the object of the requirement is to secure to the infant a proper defense. “It is the duty of a guardian >ad litem to ascertain from the infant and his friends, or from other sources of information, what are the legal and equitable rights of his ward. And it is the special duty of the guardian to bring those rights directly under the consideration of the court for decision.” Dow v. Jewell, 1 Foster (N. H.), 486; Sconce et al. v. Whitney, 12 Ill. 150; Knickerbocker v. De Frust, 2 Paige, 304 1 Daniel’s Ch. Pr. tit. Infants. His authority is to protect; and the court will not suffer his ward to be prejudiced either by his admissions or his laches. Bingh. on Inf. 135. And “where the answer of the guardian admits the bill to be true, the complainant must prove its allegations with the same strictness as if the answer had interposed a direct and positive denial.” Enos v. Capps, 12 Ill. 257; 8 Ohio, 377; 4 Grill, 370.

It is plain there was no defense by a guardian ad litem. The ■only evidence of the appointment of a gurdian is a formal answer, the body of which, like all the other pleadings in the cause, is in the handwriting of the counsel of the brothers; and this answer was only filed at the time of the filing of the decree. It was evidently treated as a mere formal matter. No attention was paid to the interests of the infants, and the suit throughout was conducted -as though it were an amicable or ex parte proceeding, involving no ■subject of real controversy. The counsel of the brothers alone appeared in and had the management of the case, and his acts or omissions are chargeable as theirs.

The effect of the decree on the rights of the infants was to exclude the 291 57-100 acres advanced to the sons from being taken into account in the partition, and thus deprive them of an interest in the home farm equivalent to two-fifths of the land so advanced.

The decree was taken on a single deposition, which, on examination, is shown not to have warranted it. The deposition was taken ex parte as to the infants, but under a formal notice to the defendants, at whose instance, equally with the plaintiff, the suit was commenced. The form given to the %uit, and the manner of conducting it, was calculated rather to avoid than to invite ex-animation and scrutiny from the court. On this point the language of the Lord Chancellor, in Richmond et ux v. Tayleur (1 P. Wms. 737), is pertinent. The suit was a bill in equity to impeach, a decree against an infant, on the ground of fraud and collusion. The chancellor said: “If any fraud or surprise upon the court had: been proved, I would have set aside the decree; but on the contrary, it appears that the court was fairly and fully apprised of the' case, of the articles, and of the point in question, viz: the lapse of time, and hath thought fit to make a decree, which, as it may be a just one, therefore I will not set it aside.”

And I am unable to see why a party who chooses to retain the influence and control arising from a fiduciary or a quasi-fiduciary relation to an infant, against whom he is’ prosecuting a suit to obtain a conveyance, should be held to a less degree of good faith in dealing with the court, in respect to the subject-matter, than he would be required to observe in dealing directly with the party:

Where parties dealing directly stand toward each other in such a relation, the obligation not only to abstain from false suggestions, but to make full disclosures, is imperative. And this principle applies to members of the same family dealing in that character as to their rights. Adams’ Eq. s. p. 179, note 1, and s. p. 183; Hill on Trustees, s. p. 148.

“ Imperfect information, given in a way calculated to produce a false impression, is equivalent to concealment. ‘He,’ says Lord Eldon, ‘ who, undertaking to give information, gives but half information, in the doctrine of this court, conceals.’ ” lb.

If the party intends to take the position and stand on the rights-of a stranger, or of an adversary, he ought first to surrender the advantages arising from the trust, confidence, and control which pertain to his fiduciary or quasi-fiduciary character.

The jurisdiction which courts of equity employ “to protect infants, is not confined to cases of a strictly fiduciary character. The principle on which relief is given, applies to all *cases where influence is acquired and abused and confidence reposed and betrayed. In the former, influence is presumed; in the latter, its existence must be proved.” Smith v. Kay, 7 House of Lord’s Cases, 751.

In delivering his opinion in the case last named — which was a bill in equity by a plaintiff to set aside a bond and securities given on his coming of age, confirmatory of debts contracted during. minority — Lord Cranworth said: “In my opinion, although this1 bill is framed upon the ground of supposed fraud, the circumstances’ of the case, as now proved, make it abundantly clear that this fraud was totally immaterial in order to entitle the plaintiff to set aside this bond, upon the ordinary principle of the court which protects-an infant,' or any other person who is, from the relations which have subsisted between him and another person, under the influence, as it is called, of that other. There is, I take it, no branch of the' jurisdiction of the court of chancery which it is more ready to exercise than that which protects infants and persons in a state of dependence, as it were, upon others, from being imposed upon by those upon whom they are so dependent. The familiar cases of the influence of a parent over his child, of a guardian over his ward, of an attorney over his client, are but instances. The principle is not confined to those cases, as was well stated by Lord Eldon, in the case of Gibson v. Jeyes, 6 Ves. 266, 278, in which he says it is ‘the great rule applying to trustees, attorneys, or any one else.’ Now what does ‘any one else’ mean? It is contended that it applies only to persons who stand in what- is called a fiduciary relation. I believe, if the principle -is examined, it will be found most frequently applied in such cases, for the simple reason that the fiduciary relation gives a power of influence.”

This principle has application in the present -case, not only directly to the'manner of obtaining the deeds from the plaintiffs as they became of age, but applies also to the obtaining the decree, which was made the grounds for obtaining the deeds.

But independent of the question of fraud, there was clear error in the decree, not only in decreeing specific performance *of the alleged contract, but in making the decree absolute against the infants, without allowing them a day in court after coming of age, within which to show cause against it.

It is said by Chancellor Kent, in Mills v. Dennis, 3 Johns Ch. 368, that it was the ancient, and has been the settled principle of the court, that no decree should be made against an infant without giving him a day (which was usually six months) after he comes of age, to show cause against it; and he is to be served with process of subpena, for that purpose, on his coming of age.

In Sheffield v. Duchess of Buckingham, 1 West, 684, which was a case in which the infant was plaintiff, Lord Hardwick said he took it to be the course of the court not to give a day, unless a convey anee was directed in form or substance. The correctness of this remark of Lord Hardwick has been doubted. See Harris v. Youman, 1 Huff. Ch. 178, where the authorities are' considered. But the present case comes within the rule as stated by Lord Hardwick. The decree had the effect, as against the infants, of a conveyance, by excluding them from their inheritance.

The authorities are abundant to show that the plaintiffs were entitled to their day to show cause against the decree, and to be duly notified before it could be made absolute against them. Dow v. Jewell, 1 Foster, 490; Harris v. Youman, supra; Wilkinson’s Adm’r, v. Oliver’s Rep., 4 Hen. & Mun. 450 ; Schofield v. Heafield, 7 Simons, 670 ; Price v. Carver, 3 Myl. & Cr. 157; Eyre v. Countess of Shaftsbury, 1 P. Wms. 120 ; Napier v. Lady Effingham, Id. 402; 2 Kent’s Com., side p. 245; Mackpherson on Infants, 212; Bingham on Infancy, 131; Seaton on Decrees, side p. 275.

Nor does the right to a day to show cause, depend upon the right of parol demurrer, that is, the right of having the pleadings stayed till the infant comes of age. The right of the parol demurring was abolished by statute in this state, and has been also in England. The chancellor, in Price v. Carver, 3 Myl. & Cr. 162, clearly points out the difference between the parol demurring and the giving a day to show cause. That was a case of strict foreclosure, and. it was held that the infant defendants had the right to a day to show *cause against the decree, on coming of age. The right, of course, does not exist in proceedings under special statutory provisions, nor in cases where sales are ordered to be made.

There is no doubt this decree would have been set aside on bill of review, if brought within the proper time. It is claimed on behalf of the defendants, that this was the plaintiffs’ only remedy. We think otherwise. That remedy would have been open to them if they had been adults; or if the decree had been perfected against them, by giving them a day in court to show cause against it, after they came of age; or if they had been strangers, under no disability or influence.

The obtaining from them the deeds was not calculated to awaken inquiry as to their rights, but rather to allay it. And tp deny them the right to inquire into the justice of the decree, when they have never had an opportunity to contest it or the claim on which it is founded, on the ground that the time allowed for filing a bill of review had passed before they discovered the wrong, would be unconseionable,' whatever may have been the actual intention of the parties in obtaining the decree.

Under the former practice, they would have had the right, on discovery of the wrong, to impeach the decree by original bill; and what would have been a good cause of action to sustain an original bill, is a good cause of action under the code.

In Richmond et ux. v. Tayleur, 1 P. Wms. 737, it was held that where an infant conceives himself aggrieved by a decree, he is not bound to proceed by way of rehearing or by bill of review, but may impeach the decree by original bill, in which it will be enough to say the decree was obtained by fraud and collusion, or that no day was given to show cause against it. And it is said in the note to the case, that Mr. Cottingham (the chancellor’s secretary) acquainted the court that Mr. Yernon, in case of an erroneous decree against an infant, used always to advise the bringing of an original bill to set it aside.

It is stated by Daniell, in his Chancery Pleading and Practice, that an infant may “ impeach a decree, on the ground of error, by original bill.” And that among the errors that *have been allowed for the purpose of impeaching a decree against an infant, is the circumstance that, in a suit for the administration of assets against an infant heir, a sale of the real estate has been decreed before a sufficient account has been taken of the personal estate.” Also : “ Another ground of error for which a decree against an infant may be impeached is, that it does not give the infant a day after his coming of age to show cause against it, in cases where he is entitled to such indulgence.” 1 Daniell’s Ch. Pl. & Prac. (Perkins’ ed., 1865) 153; Bennett v. Hamill, 2 Sch. & Lef. 566. The same doctrine is recognized in Adams’ Eq., s. p. 420; Mitf. Plead., s. p. 95 ; Story’s Eq. Plead., sec. 427.

The rule in equity within which to file a bill of review was twenty years. In this state the time was limited to five years. Whether to an original bill to impeach a. decree against an infant for errors such as have been indicated, the limitation prescribed for bills of review should be applied by analogy, it is not necessary to consider. For, if such should be the case, the rule would be qualified, in its application, by the equitable principle, that the time of limitation would not commence until discovery. The neglect of the plaintiff to secure the infant the right to show cause against the decree, ought not to be allowed to work to his advantage, nor to the detriment of the defendant.

Lapse of time is pleaded as a bar. The limitation or lapse of time to be applied against the right of the plaintiffs to impeach the decree is that existing before the code, which excepts from its operation existing causes of action. In the absence of statutory provision, there is no principle of equity to bar the plaintiffs’ right. It is true, over eighteen years elapsed from the taking of the decree to the commencement of this suit; but the plaintiffs were very young at the time of taking the decree; and no laches can be imputed to-them until discovery, the delay in which is accounted for, in the present case, by the situation of the plaintiffs and their relation to-the defendants.

The deeds come under the limitation of the code. But if the decree is set aside, the deeds must be also. Without a valid decree the deeds are clearly fraudulent; and, in cases *of fraud, the time limited by the code does not begin to run until discovery; and the burden of showing such knowledge as will set the statute to running, rests on the defendants. This is not shown.

There is another ground upon which the right of the plaintiffs to relief, may, perhaps, be safely placed; and that is, by raising in the defendants an equitable or constructive trust in respect to the property in controversy.

Trusts of this description depend upon the conclusions of law independently of contract, and often arise in cases where there was no intention to create a trust on the part of any of the parties concerned; generally speaking, they are imposed in invitum. 1 Spence’s Eq. (side) 509. A court of equity will not permit any person standing ima fiduciary situation, or who, from the relation-in which he stands to another, is capable of exercising an undue-influence oyer his mind, to derive profit from any transaction which takes place during the continuance of such fiduciary character in the one case, or which may be supposed to have taken place by reason of such opportunities of undue influence in the other. Id. (side) 626.

Mr. Hill, in his work on Trustees, thus broadly states the principle upon which the court acts: “ Wherever the circumstances of a transaction are such that the person who takes the legal estate-in-property can not also enjoy the beneficial interest without necessarily violating some established principle of equity, the •court will immediately raise a constructive trust, and fasten it upon the conscience of the legal owner, so as to convert him into a trustee for the parties, who in equity are entitled to the beneficial enjoyment.” Hill on Trustees (side), 144.

In the opinion of the court, the plaintiffs are entitled to a decree.

Day, C. J., and Welch, Brinkerhoee, and Scott, JJ., concurred.  