
    Hannum’s Heirs vs. Wallace.
    In this case it is ruled that, where a defendant in an action of ejectment died, leaving minor ’heirs, and the Circuit Court appointed a guardian to defend the suit, the guardian might, for the benefit of the heirs, consent to waive service of the copy of the declaration on himself, and might also waive the notice to appear and defend the suit, as required by the act of-1819, ch. 16. This discretion extends no further than such steps as may be necessary to the preparation of the case for trial. Such special guardian has no power to submit the claims of his ward to real estate, to arbitration.
    Wallace sued Hannum in ejectment for land in Blount county. During the pendency of the suit Hannum died. His death was suggested at the May term, in 1845. At that term Ann Eliza H. was appointed by the court, guardian to defend the suit ior the minors. A scire facias was issued, and was made known to the guardian and to the minors, and at the same term, the parties appearing by attorney, an ’entry was made that the action should be revived against the heirs at law of Hannum, and that by consent it was referred. The arbitrators made an award which was made the judgment of the court, in opposition to the objections of the guardian. The defendant appealed.
    
      W. G, Swan, for plaintiff in error.
    1. The rule of reference, made at the May term, 1845, conferred no authority upon the arbitrators, as the cause had not been revived. The act of 1819, ch. 16, §4, provides that ejectment causes shall not abate by the death of the defendant, but may be revived against'the heirs or devisees of the defendant. This cause was reinstated by bringing the heirs and not devisees of Hannum before the court; whereas, the record shows that Hannum had made a will.
    2. Though the cause may have been properly revived, the guardian pendente lite, had no authority to submit it to arbitration. Such a guardian being only a nominal party to “.defend the suit,” and that too under the immediate control of the court, he is circumscribed to a litigation of the cause in the court appointing him, and he cannot transfer it to another forum. The nature of his office and his power are distinctly set forth in the act of 1819, which prescribes his office and power to be, “ to defend the suit.” This act, being in derogation of the common law, must receive a strict construction. Consequently, no other than authority “to defend the suit” is given to a guardian -pendente lite in an ejectment cause.
    
      R. IT Hyncls, for the defendant in error.
    1. The principal question in this case is, whether a guardian ad litem can submit the cause of his wards to arbitration. It is insisted for the defendant in error, that a guardian may submit to arbitration on behalf of his wards. Weed vs. Ellis, 3 Cains Rep. 253; Weston vs. Stewart, 2 Fairf. Rep. 326 ; U. S, Dig. 483; 1 Steph. N. P. 56. In this case the submission was, by rule of court, and 'as the assent of the court in which the case was pending was had to the submission, it is believed there can be no legal objection urged against it.
    2. The cause was property revived in the court below. As to reviving the case, see act of 1819, ch. 16. The guardian ad litem, being appointed by the court to conduct the defence of the cause, on behalf of the minors, might assent to anything having for its object to facilitate the trial of the case and save costs. For this purpose the guardian might consent to continuances; might assent to the taking of depositions; and move notice of time and place for taking them; and it is also insisted, it was competent for the guardian to waive the issuance and service of copies of the declaration, and. agree to the revival. There is no error in the proceedings of the court below in reviving this suit against the plaintiffs in error.
    
      II. Maynard, for the plaintiff in error.
    1. The suit was revived, by appointing a guardian ad litem, and issuing scire facias.
    
    The act of 1819, ch. 16, sec. 4, directs that suit be revived by serving a copy of the declaration, with a notice to appear and defend.
    The act requires the action of ejectment to be revived against the heirs or devisees, clearly implying that when the deceased leaves a will the suit is to be revived against his devisees.
    The record shows that Eliza Ann Hannum the widow, is the executrix of the deceased. The suit should have been revived against his devisees and not against his heirs.
    Sec. 6 of the act, providing for non-resident heirs, declares that the suit may be revived by strictly following the provisions of the act, even if the heirs be not before the court, giving the heirs power, at any time, to change their guardian, on application to the court — implying that, in the case of resident heirs, they are to be in court with as well as by their guardian.
    In this case, the defendants appeared by attorney — not in person. They had no power to appoint an attorney. By the terms of the sci. fac. they were not called into court in person till the succeeding term, and not till then were they legally before the court. And until the heirs were legally in court, neither their guardian ad litem, nor any attorney appointed by her, could consent to the revival of the suit against the heirs.
    
      At the time of the 'submission, the defendants were not legally in court, and the suit was not properly revived.
    2. Kid on awards, 35, says, “It is a general rule, that every one who is capable of making a disposition of his property, or a release of his right, may make a submission to an award, but no one can, who is either under a civil or natural incapacity of contracting.”
    “Oh the principle, that an infant cannot bind himself for anything but necessaries, it is clear he cannot be party to a submission.” Kid on awards, 35.
    “ An award, when an infant is a party to the submission, is not, at law, at all events during the infancy, binding either on the infant, or any other party to the submission. 1 Steph. Nisi Prius, 56, and authorities cited.
    In Baker vs. Lovitt, C. J. Parsons says, “If an infant submit his rights to arbitration, he will not be bound by the award, from a presumed incompetency to choose suitable arbitrators.” 6 Mass. 80. See also 6 Munford 458.
    A guardian has no right to dispose of the real estate of his ward, nor can he make any submission respecting the realty. See act 1762, ch. 5, § 30, 18.; Kent’s Com.; Kyd on awards, 47 ; 1 Steph. N. P. 56.
    Under the act of 1819, ch. 16, the guardian to be appointed pending the suit, is “ to defend the suit,” not to compromise or to arbitrate it.
    In the present case the parties appeared “by their attornies,” and by consent the cause is revived against the heirs at law of Henry Hannum deceased, “ and thereupon, by consent, this cause is referred, &c.” It does not clearly appear whether by consent of the heirs or their attornies.
    The latter had no right or power to submit the cause to arbitration. 5 Hay. 65.
   McKinney, J.

delivered the opinion of the court.

This is an action of ejectment, brought in the Circuit Court of Blount county, for the recovery of three lots of ground, situated in the town of Maryville.

At the May term, in 1845, of said Circuit Court, the death of Henry Hannum, the sole defendant in the action, was suggested, and it was farther suggested that he had left several minor heirs, who had no regular guardian, and thereupon Ann Eliza Hannum, the widow and personal representative of the estate, was appointed by the court guardian ad litem for said minors, and it was ordered that a scire facias issue, requiring them to appear and shew cause why this suit should not be revived against them. A scire facias was accordingly issued, which was made known to said minor heirs, and also to said guardian, and was returned at the same term at which the death was suggested. The record exhibits, on a subsequent day of the same term, an entry, as follows: — “By consent of parties this suit is revived against the said defendants,— heirs at law of the said Henry Hannum deceased, — and thereupon, by consent, this cause is-referred to the arbitrament and award of Thomas C. Lyon and John H. Crozier, Esqrs., and if they cannot agree they are authorized to choose a third person. And said arbitrators are authorized to settle said cause on principles of law and equity and a spirit of compromise — having regard "to the interest of both parties — which award, when so made, shall be made the judgment of the court therein.” An award was made and returned to a subsequent term of the court, to which various exceptions were filed on behalf of the plaintiffs in error, but the exceptions were overruled by the court, and judgment was rendered thereon. The award need not be noticed, as it is not deemed necessary to discuss any of the questions arising thereon: our consideration of the case will be confined to two preliminary points, made and relied upon by the counsel for the plaintiffs in error,— L Was the suit properly revived? 2. Had the guardian ad litem power to make a submission to an award?

1. Previous to the act of 1819, ch. 16, the death of a sole defendant in an action of ejectment, worked an abatement of the suit. By ,the 4th sec. of that act it is provided, that the “ defendant’s death, pending the .action of ejectment, shall no longer abate the suit, but the same may be revived within two terms, by serving a copy of the declaration, filed In said action, on the heirs or devisees of the defendant; or, if they be minors, on their guardian or guardians, and also a notice to appear and defend said suit.” The 5th sec. empowers the court, in which the suit is pending, if the heirs are minors without a regular guardian, to appoint a guardian to defend said suit — and provides that notice of the appointment as guardian, and ■also of the pendency of said suit, shall be served upon said guardian, at least three months before the succeeding term of the court, and before said suit shall stand for trial, and if such notice be not served upon the guardian in the manner prescribed, and the length of time required, said guardian shall not be compelled to go into trial at the first term after such notice served upon him, but the suit shall stand over until the succeeding term thereafter.

From the limited nature of the power of a guardian ad litem, and the vigilant and zealous care with which the rights of infants are guarded in the court, especially where their interests in real property are involved, it is supposed that the guardian in this case had no authority to consent that the suit should be revived in the mode in which it was done, or to waive or dispense with any of the requirements of the above recited act; that to be operative against the minor defendants, the revivor must be in strict conformity with the letter of the act, and that upon this ground the revivor of this suit, in the mode in which it was attempted to be effected, was irregular and void; and consequently the suit abated. We think, that in reference to mere matters of form, preliminary to a trial, and which cannot, ordinarily, affect or prejudice the merits of the case or the interests of the minors, a guardian ad litem, may exercise a sound discretion; and that for the purpose of saving delay and a useless accumulation of costs, and to expedite the final termination of the suit, such guardian may, if acting fairly and in good faith, as in this case, consent to waive service of a copy of the declaration and the notice required by the act, and agree that the suit shall be revived at the term at which the suggestion of the death is made, when it is manifest that such course, so far from being prejudicial to the interests of the heirs will obviously be to their advantage. We are, therefore, of opinion that this suit was properly revived against the plaintiff in error, and stood regularly for trial in said court.

2. Piad the guardian ad litem power to submit to an arbitration? We think not. It is conceded, in argument, that the minor defendants could not themselves make a submission to an award; but it is insisted by the counsel for the defendant in error, that the guardian ad litem had competent power on their behalf to submit for them; and that such submission is binding upon them. The question whether a regular guardian is empowered to make a submission to arbitration in behalf of his wards, in any case in which their interests in real property are involved, does not arise upon the record before us, and need not, therefore, be considered in this case. But howeyer this may be, as respects a regular guardian, it is very clear that no such power or authority is possessed by a guardian ad litem. And it may be remarked here, that the power and duty of such guardian are limited and strictly confined to the defence of the particular suit in which he is appointed. He is to defend the suit in the court from which he derives his áuthority according to the rule and principles of law applicable to the case as administered in that tribunal, and in conformity with the ordinary mode of trial and practice of the court in similar cases. It is not within the scope of, his authority, or duty, to consent to change the tribunal for the trial; or that the decision shall be upon principles other than those applicable to like cases in the forum in which the suit is pending. His special and restricted power admit of the exercise of no such discretion.

■ We hold, therefore, that the submission, to an award made in this case, was unauthorized and void; that the •court erred in rendering judgment thereon. The judgment of the Circuit Court will be reversed, the submission and award set aside, and the case remanded to the Circuit Court of Blount county to be tided .upon its merits.  