
    *Heirs and Administrators of A. St. Clair, deceased, v. J. Smith and D. C. Milliken.
    It is error, on hill of revivor, to decree against infant defendants, until guardian ad litem he appointed, accept the appointment, and either appear or he served with process.
    Where hill and answer set up matters of account as foundation of a trust, it is error to make a decree for complainant, without a full account taken.
    Upon a hill to set up a, trust in land, part sold and part unsold, and for an account of proceeds of sale, if money he found due complainant, land can not he assigned to him in severalty in payment.
    Error, to direct infants to convey with special warranty.
    This cause was adjourned for decision here, from the county of Butler. It was*a bill, of review prosecuted to reverse a decree obtained against the complainants by the defendants in the court of common pleas of Butler county. The bill of review was filed in the common pleas, and certified to the Supreme Court for decision, in consequence of the incompetency of the court of common pleas to try it, two judges of that court being interested in the cause.
    The original bill was filed by James Smith, against Arthur St. Clair, in his lifetime. It charged that, in the year 1801, Smith and St. Clair purchased section 16, containing six hundred and forty acres, and fractions 21, 27, 27, containing eight hundred and eighty-nine acres, all lying contiguous in the township and range east of the meridian, in Butler county, in partnership, at two dollars per acre. The purchase was made of the government upon the usual terms of paying one-fifth in hand, and the remainder in three payments of two, three, and four years. That Smith paid one-half of the first installments, and St. Clair the other half. That improvements were made on the lands, and at the expense of both, especially in erecting a saw mill, and preparing a race and dam for the erection of a grist and saw mill, which, by a freshet in the river, were swept away. It also charged that in 1801, Smith settled on and improved the fraction 21, as for a permanent residence, and made permanent improvements on it. The bill further alleges, that the payments not being made according to the requisitions of the law, it was thought best to forfeit the lands, and reenter them; and that an agreement was made that they should be forfeited and entered by St. Clair in his own name for the use of both. That in pursuance of this agreement, the forfeiture took place, and St. Clair entered the lands in his own name, in the year 1804, made the payments, and obtained the patents. That in 1812, St. Clair sold one-half the entire section for two thousand dollars, and in 1816 sold the other half for one thousand eight hundred dollars, and a part of fraction 21 for two thousand one hundred and sixteen dollars; all of which money he received. The bill further charges that when St. Olair advanced the purchase money to the government, he was indebted to Smith upward of two thousand dollars for advances in *the erection of the mill works swept away in 1801, and that St. Clair at various times after the last entry of the lands, recognized Smith’s joint interest in conversation with him. All the principal allegations of the bill were repeated in special interrogatories, and it concluded with a prayer that St. Clair convey to Smith an interest in the lands unsold and for general relief.
    The answer admitted the original purchase in partnership, and the failure to complete the payment. It denied all the other allegations of the bill; claimed that the complainant was largely indebted to the respondent, and exhibited an account; and put interrogatories to be answered by the complainant. These interrogatories were never answered, and the complainant pleaded the statute of limitations to the items of account submitted by the complainant.
    The bill was filed in 1817. After answer filed, and depositions in part taken, St. Clair died, and Smith filed a bill of revivor, making St. Clair’s heirs, who were all infants, and his administrator, parties. David Wade was appointed guardian ad litem for the heirs. He never appeared or answered. There was nothing in the record to show that he was notified of, or accepted the appointment. Nor did it appear that process of any kind had been served upon him on the hill of revivor. There was no account taken between, nor any partition decreed of the land. But a final decree was made, assigning to the complainant a specified part of the land unsold, estimated in the decree at two thousand three hundred and twenty-nine dollars, and directing the administrators and heirs to pay to him four hundred and eighty-one dollars and seventy-five cents, and after this decree the land assigned to Smith had been purchased by the defendant Milliken. The heirs were also decreed to convey with covenants of general warranty.
    Many errors were assigned as grounds of reversal; but the report will be confined to those specially noticed by the court, as the ground on which they proceeded.
    1. The guardian ad litem, appointed for the minors, was not cited to appear, and did not appear and answer or make defense.
    2. The court proceeded to make a decree, without an account being taken between the parties.
    3. The decree assigns the complainants a specific portion of the lands claimed to be held in common, to be held by the *com- [357 plainant in severalty, without the right being ascertained, and partition made according to law.
    4. The heirs were decreed to convey with covenants of warranty.
    Fox, for complainants in the bill of review:
    The decree is erroneous, because rendered against infants, who were not represented in court. The court appointed David Wade guardian ad litem, but he never appeared, and it does not appear that he ever had notice of his appointment, or that he ever agreed to act in the cause, and it is very questionable, whether he knew that such a cause was ever in litigation. When a guardian ad litem is appointed, “ the infant must either come into court, to have such guardian appointed, or there must be a commission for that purpose.” Cooler’s Eq. 100 ; Ves. Jr. 563.
    “ Where an infant is attached for want of appearance, or an answer, in order to get rid of the attachment, the course is, to order a messenger to bring the infant into court, to have a guardian assigned.” 1 New. Ch. Prac. 73; 9 Ves. Jr. 12.
    In England, if the infant reside more than twenty miles from London, the court issue a commission to two or more persons to appoint a guardian. “If the infant reside within twenty miles of London, the guardian is appointed by the court; for which purpose, the infant, and the person intended to be appointed guardian, personally attend in court. 1 New. Ch. Prac. 105.
    Again. If Mr. Wade had been properly appointed, no valid decree could have been taken against the infants, by his default. There must have been an answer; if the guardian neglected his duty, the plaintiffs might have attached him; they could not take a decree, however, against the infants. 3 Marshall, 177, 143; 3 Bibb, 525.
    “No laches can be imputed to an infant, and no valid decree can be awarded against him merely by default.” 3 Johns. Ch. 368. A decree could not be rendered against an infant, even upon the admissions of a guardian, but the plaintiff must entitle himself to his decree by proof. Id.
    *1 shall not endeavor to show that, at the time of the decree rendered, there was no cause in court. The suit never was, in fact, revived. All that was done subsequent to St. Clair’s death, was the filing of a bill, praying that the court would order the cause to stand revived; no other proceedings were had. If it was necessary for the plaintiff to file his bill, in order to obtain a decree or order of revivor, it was equally necessary for the court to decree or direct that the cause should.stand revived. It was a previous question to be settled by the court, whether the party had a right to revive the cause at all, as against the defendants mentioned in his bill of revivor, before any other proceedings could be had in the original cause, until that point was decided, there was no cause in court.
    In Robinson v. S. G. Hopkins, ex’r, 3 Marshall, 564, the caso had abated by the death of the defendant, “and an order was made, directing a revival of the suit, in the name of his personal representative ;” no process was served on the bill of revivor, nor was any order of publication made against the personal representative. The decree was reversed, because no process had been, served. Judge Owsley, in delivering the opinion of the court, observes, that “according to the ancient and established rules of chancery practico, no decree could be pronounced after the death of either complainant or defendant, without a revival of the suit, in the name of the legal representatives of the deceased; and the only mode by which the suit could be revived, was by exhibiting a bill of revivor, and causing the service of process thereunder.” Again, in the case of Morton v. Long and others, in the same book, page 414, which was an action of trespass quare clausum fregit, the defendant justified under a writ of possession under a docree. It appeared that a suit in chancery had been commenced against Edward Mitchell, who, after having answered, died, and the suit was revived against “ Sarah Mitchell, his heir and representative,” as was stated in the record. The plaintiff replied, that “ Robert Mitchell was, at the death of said Edward, his only surviving brother, and sole heir, and that the said Sarah Mitchell, against whom the suit was revived, was not the heir of the said Edward.” To this replication,the defendant demurred,and obtained judgment below, *which was reversed in the court of appeals. In delivering the opinion, Judge Mills remarks: “ It is well settled that only parties and privies to a decree are bound by it. It is also necessary to revive a suit against a representative, after the death of the original party, in order that such representative may be bound by the decree. If he could be affected without revivor, or by reviving against a stranger, any proceedings to revive would be wholly unnecessary.” The judgment was reversed on this point.
    The elementary books are also very explicit on this subject. 1 Har. Ch. Prac., chap. Bills of Revivor, 153; Blake’s Ch. Prac. 43. If the plaintiff die pending a suit, it is abated, and his executors or administrators must revive the cause, before the same can be further proceeded upon ; and all the orders for the revival of proceedings must be served upon the adverse clerk in court, to the end that he may take notice that the suit is revived.”
    To show that there must be an order of court directing a suit to stand revived, the court are referred to the following authorities: 2 Mad. Ch. 402; 1 New. Ch. Prac. 124; 2 New. Ch. Prac. 252, where the form of an order of revivor is given in full.
    Mitford’s Pleadings, 72: “ The end of the order of revivor being only to put1 the suit and proceedings in the situation in which they stood at the time of the abatement, and to enable the plaintiff to proceed accordingly.” Cooper’s Eq. Plead. 72; 3 P. Wms. 348; 5 Ves. Jr. 305; 11 Id. 306; 13 Id. 160; 5 Johns. Ch. 257.
    I think it clear, therefore, from the reason of the thing, and from the authorities, that, after a sole defendant dies, there is no-case in court upon which the judges can take the least step. The hands of the court are completely tied, until the question as to reviving is properly brought before them; and until an order or decree is made, directing the cause to stand revived, no step whatever can bo taken to affect the merits of the original cause. The decree, therefore, is void, being made in a cause which was not in fact before the court. They had as much right to strike all their former decrees off the docket, as to .make a decree against person» who were not defendants in the cause, and could not be, until the court had ordered that they should *be defendants; until that order they were defendants to a bill of revivor, and to no other bill.
    If the cause had stood revived, and Smith was entitled to any relief, was he entitled to such a decree as the court has made? The contract, if any was made, was that they were to be joint owners as heretofore, and it was for the purpose of enforcing that agreement specifically that the bill was filed. It is very evident, therefore, that all the court ought to have decreed was, that Smith and the heirs of St. Clair were joint owners of the land unsold (for the bill confirmed the sales already made), and if St. Clair had sold more land than would repay the purchase money and interest, an account ought to have been taken, and a decree against the estate for the amount coming to Smith, and in taking such an account it would be proper that Smith should account to St. Clair for the rents which he had received from tenants occupying the land, and also for the yearly value of the land which Smith had occupied since the purchase. But nothing of this kind was allowed. It will be found, by calculation, that St. Clair is only allowed simple interest on the purchase money, from the time of purchase to the rendering the decree, and he is charged with interest on the proceeds of the sales from the time he received them. Smith is not charged one cent for the rent of any of the premises, although he states in his bill that in the year “eighteen hundred and - he settled with his family on fraction 21, where he has ever since resided.” It is certainly unjust to charge St. Clair with interest on the proceeds of sale, without compelling Smith to account for rents received and due. Money received by way of rents ought also to carry interest, as well as money received from sales. Instead, however, of decreeing a specific performance of the contract set out in the bill, a particular parcel of the land, valued at two thousand three hundred and twenty-nine dollars, has been set apart to Smith, and not an undivided interest in the whole. Instead of giving to the heirs of St. Clair the half of the land, and charging them with a debt of two thousand eight hundred and ten dollars and seventy-five cents, the supposed half •of the profits of the speculation, they have given Smith a part of •the land, which they say is worth two thousand three hundred and ¡twenty-nine dollars, and a deeree for four hundred and eighty* one dollars and seventy-five cents, to be paid in money. Why not have decreed Smith a little more land at a valuation which .the court should affix? The court perceive *at once the effect of this decree; it is to give Smith a preference over other creditors of St. Clair’s estate, for a simple contract debt. The decree, therefore, is an improper one. It is a decree of partition which could not have been made consistently with the allegations and charges in the bill. It is inconsistent with the contract sought to be onforced.
    Again : Smith alleges that St. Clair, at the time of the purchase, was indebted to him upward of two thousand dollars for money which Smith had advanced in erecting the saw mill, and he calls upon St. Clair, by special interrogatory, to answer whether he, Smith, did not advance to the hands employed in doing, and for materials necessary for carrying on said work, upward of two thousand dollars, or how much ? And to state how much he, St. Clair, advanced toward said work and materials? Here are special interrogatories; and tho object of Smith was to establish a claim against St. Clair by his answer to those interrogatories. His answer, therefore, being directly responsive to the bill, must be considered true unless contradicted, and it is evidence as well for as against him. Let us see, then, how the case stands between them as to their accounts. And let it be again remembered that it is Smith who seeks an investigation of the accounts. He, St. Clair, in his answer to Smith’s interrogatories, says he does not know how much Smith advanced, but says Smith told him it was about twelve hundred dollars, after St. Clair had shown an account of between one thousand and eleven hundred dollars. He denied that he was indebted to him one cent, and states “ that he advanced to workmen and for materials about four thousand dollars, independent of which Smith was then indebted to him about four thousand dollars more.” And for the purpose of proving his account (which, by tho bye, as his answer was responsive to the bill it was unnecessary for him to prove), he calls upon Smith to answer special interrogatories concerning payments for and money lent to Smith, independent of his claims against him for lawyer’s fees for ten or twenty years, amounting to several thousand dollars. The amount, then, between the parties, so far as we can collect from the pleadings and proofs, shows a clear balance in favor of St. Clair against Smith of at least eight or ten thousand dollars. Why was not this noticed in the decree ? If the answer was evidence in St. Clair’s favor, as it undoubtedly was, why was not an account ordered and the real ^situation of their accounts ascertained ? Smith could not abandon an examination of the accounts after St. Clair’s answer was filed. He had seen proper to make a witness of St. Clair, and it was out of his power to take a part of his testimony and set aside the other part. If, therefore, the court should consider there was a valid agreement to repurchase, and that after such a purchase the parties were to hold the lands “ as they had before held them,” and that at the time of repurchase Smith was indebted to St. Clair on account of moneys advanced, or if the partners were then indebted and St. Clair has since had to pay upward of six thousand dollars on account of Smith and St. Clair, the latter ought, in equity and justice, to have had a credit allowed him in taking the account equal to the amount advanced. The court erred, therefore, in making any decree without referring the accounts of the .parties to a master in chancery, who could have settled the account fairly; and if they could have decreed without such a reference, it is plain that, according to the pleadings and proofs in the cause, the decree ought to have been in favor of the representatives of St. Clair, and the more so, as Smith admits in his bill that he was to account to St. Clair for half the purchase money. He has no right to say that the money received by St. Clair, on account of the land sold, shall be allowed a credit toward the purchase money, and then file a plea of the statute of limitations to prevent an examination of the accounts of moneys expended in improving and making that land valuable so that it could be sold. It is one of the most iniquitous decrees that could have been made. The land was made valuable by expending money in improving it. And Smith wishes and has obtained one-half of the proceodsof sales of those lands, after the money had been expended in the improvements, without contributing to the expenses incurred in making those improvements.
    Again : It is decreed “ that the defendants, heirs, etc., convey to Smith, by and with special warranty within one year.” The-decree is wrong in directing infants to enter into any kind of covenants. Chancellor Kent, in Ferris v. Nelson, 5 Johns. Ch. 262, refused to order infants to enter into any personal covenants. “ He said that they could not be so bound, and that the only order to be made was that they ^should, by their guardian, release and «convey all the title whereof their ancestor died seized.
    T. Corwin and Collet, for defendants in the bill of review:
    1. The ancestor having answered, and the cause being put to issue, it was not necessary for the heirs to answer.
    2. There was no necessity to take an account. The bill and answer agreed as to the sums paid for the land, and the amount received by St. Clair for sales. The calculation was made upon the basis of charging Smith with one-half the purchase money paid by St. Clair, with interest added; deduct the product from one-half the amount received by St. Clair, add the remainder to •the appraised value ot the land set off to Smith, and deduct this from the appraised value of the land by the commissioners, and •the product is the sum specified in the decree. The other accounts between the parties have no connection with the land contract.
    3. The land set off by valuation was in the nature of a partition. When a tenant in common, in equity, appropriates by salé, to himself exclusively, a large portion of the common property, he can not object that the court should assign to the other party his full share from what remains unappropriated.
    Besides, St. Clair being trustee for Smith, a lien attached to the land unappropriated, in favor of Smith, for the balance of money ■due or proceeds of sales. In enforcing payment, a court of equity might well set up the lien and direct a sale of the lands, or, as in the case of foreclosing a mortgage, decree it to the complainant at a fixed price.
    4. Admitting it were error to decree the heirs to convey with warranty, still, as they have not conveyed, the error has worked them no prejudice, and furnishes no ground for reversing the decree. St. Clair is treated as a trustee, and his heirs are consequently only required to perfect and execute that trust. In that ■case they may be required to convey with special warranty.
   By the Court :

The object of filing a bill of revivor is to bring the parties to be -affected by the decree before the court. If these parties *be of full age it is indispensable that they be served with process to appear or voluntarily enter their appearance. Without one or the other no proceedings can be regularly had against them. If the defendants in the bill of revivor be minors, a guardian ad litem, must be appointed for them, who must accept the appointment, and who must be brought before the court, as in other cases, by his voluntary act or by process. When the defendants in a bill of revivor appear, they may abide by the ancestor of the deceased defendant or answer for themselves. If the deceased defendant, have not answered the new defendants must answer, or a decree pro confesso be taken against them, before a final decree can be-pronounced. This is the only correct course of practice, as is fully established by the authorities adduced on the part of the complainant, which are in conformity to the practice in our courts. ■

In the case before us the defendants in the bill of revivor were' all minors but the administrator. For these minors a guardian ad litem was appointed. But there is nothing in the record to show that he ever accepted the ajjpointment, or appeared or was notified to appear. No act seems to have been done by him. No answer is filed, no election to abide by the answer of the ancestor is made, no rule or order taken to obtain an appearance or answer. The final decree against the heirs is thus made against parties not in court, and who upon no principle of justice ought to be precluded by that decree. The fact that the ancestor had answered" does not vary the case. If that answer concluded them without their being heard, they must nevertheless be in court to be bound by the decree. There is, therefore, error in this particular in the decree, for which it must be reversed.

In both the bill and answer various matters of account were introdueed, and claimed and contested between the parties. Smith claimed that St. Clair was indebted to him for moneys advanced for partnership purposes, in erecting mill works upon the lands in. question. And it was in part, at least, upon this indebtedness of' St. Clair, that tho bill sought to raise a trust for Smith in St. Clair’s last purchase of the land. St. Clair, in his answer, denied that he owed Smith anything, and insisted, on the contrary, that Smith was largely his debtor. This question of indebtedness-*ought to have been settled before a decree was pronounced, charging St. Clair as a debtor. For conceding that the trust was established, St. Clair could not be required to pay to Smith any part of the profits arising on the sales of the lands, if Smith were indebted to him, as claimed, upon other accounts. Until an account was taken of all the money transactions set forth in the bi1? and answer, no correct decree could probably be made. It could1 not be material whether this account was taken by a master or by the court themselves. But it does not appear to have been taken at all, and the data upon which the counsel for the present defendants place the decree admits that all transactions were disregarded, except such as related to the last purchase and to the sales-of the land. This was erroneous, and supplies another ground for reversing the decree.

Upon the hypothesis assumed in the bill, St. Clair was debtor to the complainant-for one-half of the profits received upon the lands sold, and was trustee for him for one undivided half of the-lands unsold. There is nothing in this state of the ease that would give to the complainant a lien for the moneys due upon the land unsold. In this respect, both as against St. Clair and his creditors, the debt would stand upon the same foundation with other debts, and a decree should have been made against the administrator only for the amount. And against the heirs partition should have been decreed, as in the ordinary case of a tenancy in common, originating in a trust and decreed in equity. The decree in this case setting apart a portion' of the land to the complainant, in severalty, can not be supported upon any known or safe principles.

The direction that the infants, shall convey with warranty, is also erroneous. Infants are not capable in law of making covenants to bind themselves. A court of equity can not decree them to do it. The decree is not the less erroneous that it has operated no prejudice.

For these reasons the decree is reversed, and the cause is retained and remanded to the Supreme Court of Butler county, for further proceedings.  