
    Susan S. Browning v. Richard H. Browning et al.
    
    Chancery Pleadings and Practice. Sale of minor’s land. Guardian ad litem A guardian ad litem, appointed in a pending suit by a third person against an infant, lias no authority by filing his answer as across-bill to obtain the sanction of the court to an unauthorized sale of the infant’s realty.
    FROM HAYWOOD.
    Appeal from the Chancery Court at Brownsville. H.. J. Livingston, Ch.
    
      E. J. & J. C.. Read for complainant.
    A. D. Bhight and Thomas Steele for defendants..
   Cooper, J.,

delivered the opinion of the court.

The tract of land in controversy was owned originally by S. T., T. E. and George Blair, brothers,, under a conveyance from their father, E. S. Blair. George Blair died leaving a widow, Haney Blair, and one son George D. Blair. In this state of affairs,, on August 1, 1871, S. T. Blair, T. E. Blair, Haney Blair, and E. S. Blair, the latter probably acting for his. grandson, George D. Blair, then an infant of tender years, seem to have entered into a contract with J.. L. W. Browning, the husband of the complainant,. Susan S. Browning, to sell him the tract of land for $3,824, for which J. L. W. Browning executed his. three notes on time, one payable to E. S. Blair, S. T. Blair, T. E. Blair and Haney Blair for $1,912,. and two of them payable to S. T. Blair, Thomas. Blair and Haney Blair for $956 each. These notes, are all dated August 1, 1871, and recite on their face that they are given for land that day bought by Browning from the payees, and for the payment of which a lien is retained on the land. At the time, a deed of conveyance of the land was drawn up between S. T. Blair, T. E. Blair, Haney Blair and E. S. Blair of the first part, and J. L. W. Browning and Susan S. Browning, his . wife, of the second part,. whereby the parties of the first part, in consideration of $3,824 cash in hand paid, sell and convey the said. land to the parties of the second part and their heirs forever, with covenants of seizin, right to convey and against encumbrances, and with the further covenant of general warranty of title. This deed, in . the copy exhibited in the record, is only executed by S. T., T, E. and Nancy Blair, although the probate j shows also an acknowledgment by E. S. Blair. There is no doubt that it was part of the contract of the parties that proceedings should be instituted .in the chancery court to perfect the title by procuring the sanction of the court to the sale of the land on behalf of the infant George D. Blair. Accordingly, on December 30, 1871, S. T. Blair, T. .E. Blair and J. L. W. Browning join in filing a bill in the chancery court against Nancy Blair and George D. Blair for the purpose, in which the contract is set out as having been made between S. T. and T. E. Blair of the one part, and J. L. W. Browning of the other part. The prayer is that the contract of sale be confirmed, the title of the land be divested out of the other parties and vested in J. L. W. Browning, subject to a lien for the balance of the purchase money unpaid. J. L, W. Browning died in March, 1872, leaving surviving his widow, Susan S., and several children. His death was suggested, and the widow and children brought before the court by scire facias. R. H. Browning was appointed and qualified as administrator of the estate of the deceased. During the progress of this cause, the administrator paid so much of the purchase money of the land as constituted the shares of S. T. and T. E. Blair. The widow having expressed Per willingness to take the value of her dower interest in money, the value was ascertained to be $344, and this amount of the purchase money was also paid to her. The residue of the purchase money, upon calculation, was found to be on March 17, 1875, $865.10. The court had already declared its willingness to sanction the sale on behalf of the infant upon payment of the purchase money, but had reserved the confirmation until such payment. By this time, the estate of. J. L. W. Browning had been exhausted, the land vesting in the widow by right of survivorship under the joint deed to her husband and herself. Under these circumstances, the court agreed to an extension of time for the payment of the share of the minor, upon the administrator giving his note with security for such balance of purchse money, reserving a lien on the land for its payment. The note was executed and made payable to the clerk and master of the court, who afterwards took judgment upon it, and thereupon the administrator obtained an order for the sale of the land in satisfaction thereof under the lien reserved. The original bill in the present cause was then filed by the widow, and further proceedings under-' the decree enjoined, upon the ground that she was no party to the suit in which they were had. The bill concedes that the infant George D. Blair has never parted with his title to one-third of the land, and prays, among other things, that his one-third interest be set apart to him. . The answer of George D. Blair by his guardian ad litem was filed as a cross-bill for the purpose of securing his rights upon the facts. The chancellor held that the proceedings in the case of S. T. Blair et el. v. Nancy Blair and George D. Blair were null and void; that it was to the interest of the said George D. Blair to confirm the original sale to Browning upon the payment of the balance of the unpaid purchase money; and that this could be done in the present suit. He therefore rendered a decree in favor of George D. Blair for the balance of purchase money unpaid as ascertained in the former suit, with interest, declared the amount to be a lien on the whole land, and ordered the land to be sold in satisfaction thereof if the money was not otherwise paid. The widow, Susan S. Browning, alone appealed.

The original contract for the purchase of the land in 1871, was made by J. L. W. Browning, the husband, and he or his estate has paid all the purchase money that has been paid. The wife, Susan S. Browning, is a mere volunteer taking 'title stipulated for by the husband. Although she was never bound for the purchase money, she took the land subject to the lien for the purchase money: Jackson v. Rutledge, 3 Lea, 626; Willingham v. Leake, 7 Baxt., 453. The husband was well aware at the time of the defect in the title, and accepted a deed under a general covenant of warranty, and went into possession under it. It was a part o'f the contract of sale that proceedings should be instituted to perfect the title, and he himself joined in the suit which was afterwards brought for the purpose. Time, it has been expressly held, will be no objection to the specific enforcement of a contract for the sale of land during the-mutual forbearance of vendor and vendee on account of the embarrassment of the vendor’s title: Craig v. Leifer, 2 Yer., 193. And the knowledge by the purchaser of the ground of embarrassment deprives him, and a volunteer under him, of all right to complain of the delay incident to its satisfactory removal, his possession not being disturbed: Chadwell v. Winston, 3 Tenn. Ch. 110; McClure v. Harris, 7, Heis., 379; Mullins v. Aiken, 2 Heis., 545. The purchaser cannot rescind if the title is perfected before final decreer Winfrey v. Drake, 4 Lea, 293. And the power of a court of chancery to consent to a sale of the infant’s land is clear: Elliott v. Blair, 5 Cold., 185; Code, sec. 3323 et seq.; Gray v. Barnard, 1 Tenn. Ch. 298.

But the difficulty in this is that the Code, sec. 3323, et seq., prescribes the mode in which the court of chancery may, for and on behalf of a person laboring under the disability of infancy, consent to and decree a sale of the property of an infant. The application, it is expressly provided, must be made by the regular guardian ” of the infant: Sec. 3324. The statute intended the delicate responsibility of initiating such proceedings should only be entrusted to a person legally bound to act for the benefit of the infant. A guardian ad litem, appointed to defend a pending suit is not entrusted with such a power. Whether the court of chancery, under its general jurisdiction, might be authorized to depart from the letter of the statute upon an application made by a father, or other near relation of an infant, in the capacity of next friend, it is not necessary to determine: Mason v. Tinsley, 1 Tenn. Ch., 154. It is. sufficient to say that the power is not vested in a mere guardian ad litem.

It is obvious that the infant in the case before us. has never parted with his- title to one-third of the land in controversy. It is equally clear that the sale which has been made of his share' in the land may be sustained by the court upon proper proceedings in his behalf. There is a right of election as to the relief which it would be most to the interest of the infant to pursue. A regular guardian is the proper person to -make that election and initiate the necessary proceedings to effectuate it. If it should be found for the interest of the infant to take the land, the value of the dower of the infant’s mother should be deducted from the rents recovered. If the election should be to sanction the sale, the recovery could only be for-one-third of the purchase money of the land, after deducting the value of the' mother’s dower, as was, done in this case.

The decree of the chancellor will be reversed, and the cause remanded to the chancery court for further proceedings in accordance with this opinion.

The costs of this court will be paid, one-half by the complainant and the other half by the infant, the latter amount to be paid out of the eventual recovery in this case.  