
    Carpenter and Grigsby vs. Strother’s heirs.
    APPEAL PROM NELSON CIRCUIT.
    1. The Circuit Court has no jurisdiction to order the sale of infants’ real estate, whether they be plaintiffs or defendants to a proceeding for that purpose, until commissioners make report, under oath, to the court the net value of the infant’s real and personal estate, and the annual profits; these provisions of the law must be strictly pursued. (Revised Statutes, chapter 6, article 3, page 592.)
    
      If defendant to such a proceeding be an infant the guardian mast file an answer, under oath, setting forth his belief that a sale will redound to the interest of his ward, before the court can decree a salo. A sale made without a compliance with these prerequisites is void.
    The facts of the case are stated in the opinion of the Court. Rep.
    
    
      Grigsby Carpenter for appellants-—
    The appellants purchased real estate, under a decree of the Nelson Circuit Court, belonging to infants, and finding the proceedings void, for error in conducting the case to a hearing, moved the court to quash the sale, and proceeding for errors apparent on the face of the record, which being- overruled they have appealed to this court.
    They contend — 1. That the court had no jurisdiction to decree the sale. The Revised Statutes, 592, says, “That before a court shall have jurisdiction to ‘ decree a sale of infant’s land three commissioners ‘ must be appointed to report, and must report, un- ‘ der oath, to the court, the net value of the infant’s ‘real and personal estate, and the annual profits ‘ thereof, and whether the interest of the infant or id- ‘ iot requires the sale to be made.” In this case only two commissioners were sworn — the third was not sworn. They failed to report the annual profits of the estate.
    2. The statute also requires “that all persons in-. ‘ terested in the land, and the statutory guardian of ‘ the infants, if any, who are not petitioning, must be ‘ made parties.” (Revised Statutes, 592.) Mrs. Glass-cock’s children are named as parties in the petition as non-residents. No service on them, nor any warning order against them. The clerk was appointed guardian ad litem, and filed an answer, but gives no consent to a sale, asking the court to protect their interest. These children own one eleventh of the land, and this proceeding did not authorize the sale thereof, consequently the purchaser will fail to get It. It could not be divested without the consent of the statutory guardian.
    3. No bond was given by guardian, without which the decree for sale is void. (Revised Statutes, 592,3.) There is no evidence in the record that there are any guardians for any of the parties.
    4. The Interest of Mrs. Hinton Is vested in two trustees — one only consents to a sale of her interest. Is that sufficient to pass the title ? Again : the devise to trustees for the benefit of Mrs. Hinton is for her life only, and then to her heirs. Are they not necessary parties also ?
    5. Two of the females, Emily and Sarah, answered without oath, consenting to the sale; subsequently, and before the decree, they married ; the husband of Emily answered, consenting to the sale; but his wife now occupies a different position from that which she occupied when she answered, and her brothers and sisters have an interest in her share. The statute requires that the husband shall give bond, and that the proceeds of the sale shall, in certain contingencies, pass to her kindred. The husband should be brought before the court by amended petition. He cannot make himself a party by filing an answer alone, in a case where there is neither petition or process against him.
    In regard to Sarah, the other who married, there is no notice taken of the fact before the decree, tho’ after the motion was made Sarah and her husband tender their deed, yet she has not been privily examined, which was indispensible to pass her title. But bond was also necessary to secure to her the principal fund, and to her children in case her husband survive her, or to her heirs in case she have no children. {Revised Statutes, 594.)
    The representative- of the donor was also a necessary party to the proceedings.
    The statute on this subject confers a special jurisdiction, under certain clearly defined circumstances, and without all the facts giving the jurisdiction appear in the record, the jurisdiction fails.
    It is believed that the proceeding was without authority, and should be reversed and held for naught.
    
      James Harlan for appellees—
    If the appellants had any valid objection to the sale, at which they were the purchasers, they should have interposed that objection before the sale was confirmed by the chancellor. By the final decree of June, 1854, confirming the sale, the parties were out of court.
    Final decrees may be annulled and reversed in two ways: 1. By appeal or writ of error. 2. By bill of review. They may be modified, changed, or entirely abrogated by the court at the term they are rendered, but after the term has closed such decrees are beyond the control of the judge who rendered, them, at any subsequent term. Whether the appellants might not obtain relief upon the grounds here relied upon, upon an original bill brought to avoid the contract, will not now be discussed, but it is insisted that the remedy now sought by motion, ex parte, is unknown in a chancery proceeding, under the circumstances appearing in this record.
    If the court shall not concur in the first view of the question, then the following reasons are submitted why the judgment of the Circuit Court, dismissing the motion, should be affirmed:
    1. The Nelson Circuit Court had jurisdiction of the persons and the subject matter upon which the decree was to operate, and consequently the decree was not void. If merely erroneous will this court adjudicate upon the supposed errors when presented collaterally ? If decrees are not void they are binding upon all parties and privies until reversed, and the mode of proceeding to obtain a reversal is pointed out by law.
    The first objection to the proceeding is that the petition is filed by the heirs, by their guardian, instead of in the name of their guardian. This is extremely technical. It is meant that the petition should read “Wm D. Strother, guardian for Catharine Strother, &c.,” instead of “Catharine Strother, &c., by Wm. D. Strother, their guardian.” Is there any substantial difference ? The petition is signed and sworn to by the guardian, and it contains a separate and independent paragraph in these words: “Wm. D. ‘ Strother, the guardian of said infants, says he veri- ‘ ly believes a sale of the land would redound to the ‘ interest of his said wards, and therefore prays a ‘ sale of the same.” The statute is substantially complied with.
    2. It is objected that the report of the commissioner does not conform to the statute. The report shows the value of the interest of each of the petitioners in the land, slaves, and personalty, and the opinion is expressed that it would redound to the interest of the children that the land be sold.
    3. That the report says nothing in regard to the interest of the infant defendants. The statute is not understood by the counsel of appellees as requiring the same proceedings to be had, in respect to the infant defendants as the infant plaintiffs. The guardians of the infant defendants, as well as the infant plaintiffs, are required to execute bond to secure the payment of the money received from the sale, which has been done in this case. •
    The 4th, 5th, and 15th objections may be considered together. The first asserts a principle of practice, and the two others are stated as examples not in conformity to the .principle. The statute does not require the husband to make his wife a defendant— in effect, to sue her. Two of the daughters, Emily and Sarah, filed separate answers consenting to a sale of the land, but it is now said that as they have been married subsequently, and their answers are not binding on them. No effort was made to change the answers by amendment or otherwise, and neither they, nor any person claiming under them, can take advantage of their subsequent marriage. The husband of Emily filed an answer consenting to the sale; and as to the other, Sarah, who married Bel mear, there is a conveyance tendered to the purchasers. This being- done every ground of complaint is removed.
    Two other objections only require notice. 1st. As to Mrs. Hinton. She and her husband and her trustees all answered, giving their consent to the sale. 2. As to the children of Mrs. Glasscock. A guardian ad litem was appointed by the court — the father of the children, and their natural guardian, who answered consenting to the sale.
    All the bonds required by the statute were executed in due and proper time and form.
    A close inspection, of the record will satisfy the court that all the substantial requisitions of the statute have been complied with; and a conveyance by a commissioner of the court, upon the payment of the purchase money will invest the purchasers with all the title which the ancestor of the appellees possessed.
    October 10.
   Judge Simtson

deliYered the opinion of the Court.

This is a motion made by the purchasers of a tract of land which was sold by a commissioner, under a judgment of the Nelson Circuit Court, rendered in an action brought in 1852, for the sale of real estate of infants, to quash the sale, and the sale bonds executed by them, on grounds appearing in the record of said proceedings.

The petition was filed in the name of three of the infant heirs, who sued by their statutory guardian, and the other heirs, some of whom were infants and others married women, were all made parties to it. A judgment ordering a sale of the whole land was entered at the August term, 1853. A sale was made in pursuance of the judgment, at which the plaintiffs in the motion were the purchasers. The commissioner’s report and sale were approved and confirmed by the court at the June term, 1854. This motion was not made until the February term, 1855.

Before considering the objections made to the validity of the sale it becomes necessary to decide a preliminary question with l’espect to the power of the Circuit Court to quash the sale, which had been confirmed by it at a previous term. It is contended that the purchasers can only obtain relief, if they be entitled to any, by an application to a court of equity, and that the judgment directing a sale, and the order of its confirmation, are final, and cannot be vacated except by an appeal to this court, or by such proceedings in the Circuit Court as are authorized by the Code of Practice, section 579.

The Circuit Court had no power in this motion to vacate the judgment, but if it be void because the requisitions of the law have not been complied with, and the purchasers have not acquired any title by the sale made under it, the court certainly has the power to treat the whole proceedings as void, and to quash the sale and the sale bonds executed by the purchasers.

The first objection made to the proceedings is that the petition was filed in the name of the infants when it should have been in the name of the guardian alone. The petition was substantially a joint one by the infants and the guardian — the latter swearing to the petition, and consenting that his interest as one of the heirs might be sold if'the court should be of opinion that a sale of the land would redound to the advantage of his wards. The law requires the petition to be filed by the statutory guardian, and to be verified by his affidavit; it also requires all the persons interested in the land, and the statutory guardians of the infants, if any, who are not petitioners, to be made parties. It seems to contemplate some of the infants as petitioners, and as they should be made parties, either as plaintiffs or defendants, the fact that they are plaintiffs in the petition will not render the proceedings invalid.

1. The Circuit Court has no jurisdiction to order the sale of infant’s real estate, whether they be plaintiffs or defendants to a proceeding for that purpose, until com missioners make report under oath to the court the net value of the infants’ real and personal estate, and the annual profits. These provisions of the law must be strictly pursued. Rev. Stat., chap, art. 3, p.592.)

2. If defendant to such proceedings be an infant, the guardian must file an answer under oath, setting forth his belief that a sale will redound to the interest of his ward, before the court can decree a sale. A sale made without a compliance with these prerequisites is void.

But other objections, of a more serious nature, are made to the proceedings on the petition. The commissioners who were appointed to ascertain and report in relation to the infants real and personal estate, and the annual profits thereof, failed in their report to state either the amount of the personal estate, exclusive of slaves, or the annual profits of the estate.

By the Revised Statutes, chapter 86, article 3, page 592, it is enacted that before a court shall have jurisdiction to decree a sale of infants land “three com- ‘ missioners must be appointed to report, and must ‘ report under oath to the court, the net value of the ‘ infant’s real and personal estate, and the annual ‘ profits thereof.” These facts are required to be reported to enable the court to determine whether or not a sale of the land in the petition mentioned would be to the benefit of the infant. Until this has been done the court has no jurisdiction to decree a sale of the land, and consequently any such decree or judgment, if rendered before a report has been made in conformity with the statute, is unauthorized and void. The law in this respect must be strictly complied with, and the report of the commissioners must be full and explicit on all the matters which, by the statute, they are required to ascertain and communicate to the. court.

When any of the defendants are infants, and have an interest in the land, their interest therein can only be sold when their guardian shall file an answer stating his belief that a sale of it will redound to their benefit, and commissioners appointed for the purpose have made such a report as the law requires. The statute is clear and explicit in providing that the court shall have no j urisdiction to decree a sale of infants lands until this be done. This provisions applies to all the infants, whether plaintiffs or defendants. As some of the defendants were infants, and this mode of proceeding was not adopted, the court had no power to sell their part of the land, consequently the judgment ordering a sale is void as to that part of the land which belonged to any of the infant heirs.

Other objections have been made to the proceedings, but as they, if valid at all, would not render the judgment void but only erroneous, or at most voidable, we do not deem it necessary to consider them, inasmuch as they cannot be relied upon in this motion.

Wherefore the judgment dismissing the plaintiffs’ motion is reversed, and cause remanded with directions to quash the sale and the sale bonds executed by the purchasers.  