
    *Durrett v. Davis, Guardian & als.
    January Term, 1874,
    Richmond.
    i. Sale of.Lands of Infant.—There has been a sale of the land of an Infant under the decree of the proper court, in 1860, and a payment of the purchase money. In 1870, the infant hy his next friend files Ms petition in the cause to set aside the decree and sale, on various grounds. Held:
    1. Same—Title of Purchaser.—Although a purchaser at a judicial sale may be required to see to the ■regularity of the proceedings upon which the jurisdiction of the court is founded, he is not bound to investigate the truth of the matters stated in the bill and deposed to by the witnesses touching the estate owned by the infant. His title cannot be affected because the case made by the record happens not to be warranted by the facts.
    2. Same—Same.—The guardian of the infant who brought the suit is one of the persons who would be entitled to the estate if the infant died under age, and he is not a party as such. At the same . term at which the decree for the sale of the land was made, the guardian resigned his guardianship, and it was ordered that the suit abate as to him, and that it should proceed in the name of the second guardian who had qualified. At the sale of the land the first guardian became the surety of the purchaser of the land for the purchase money. He could never be heard to impeach the decree or the title acquired under it. But if he could, though the purchaser might object, the infant cannot object because the purchaser has not acquired a perfect title.
    3. Same—Regularity of.—The answer filed by the guardian ad litem of the infant, purports to be the answer of the infant by his guardian ad litem.; but it is signed by the latter. It is the opinions,. statements and responses of the guardian that are given; and *it has the same effect as if it had been designated and filed as the answer of the guardian in his proper person.
    4. Same—Same.—The decree reciting that the cause came on to be heard upon the answer of the guardian ad litem, it will be presumed that the answer was sworn to, though there is not now any evidence of the fact in the record.
    5. Same—Same — Presumption.* — The statute requires that the bill shall be verified by the oath of .the guardian of the infant. Though it may be most regular that this should be done when the bill is filed, this is not indispensable, and it is sufficient if it is sworn to at any time before the court acts upon it and decrees a sale.
    6. Same—Same—Same.—The decree reciting that the cause came on as to the defendants who had not answered, upon the return of the subpoenas executed, it will be presumed that the bill was filed at the proper time.
    7. Same—Same.—It is no valid objection to the proceedings, that the depositions were taken before the same person as commissioner who was the guardian ad litem of the infant.
    8. Same—Same.—It is no objection to the proceedings, that the dower of the widow in the land was not laid off or provided for before the sale; the widow having answered and assented to it.
    9. Same—Same.—The chancery courts in this State having always had the power to appoint guardians, the power is not taken from them by the statute, ch. 129, s. 11, of the Code of 1849.
    10. Same—Same,—But if the chancery courts have no power to appoint guardians in the first instance, but only to remove ana appoint, yet when they have appointed, the validity of the appointment cannot be questioned in a collateral proceeding. No other court, unless it be an appellate tribunal, is authorized to examine the records to ascertain whether the occasion was one for ■ the exercise of the power.
    11. Same—Same.—In determining whether the sale was a beneficial one for the infant, we must look to the circumstances as they existed at the time it was made, and not to subsequent events.
    In February 1855 David W. Davis, of Greene county, departed this life intestate, leaving- his wife surviving *-him, and one child, Thomas Davis, of three or four years of age. In November 1857 the Circuit court of Greene county “sitting in chancery,” appointed Isaac B. Davis guardian of Thomas Davis, and Mrs. Davis seems to have married, on or about that year, E. K. Durrett; her dower in the estate of her first husband not having been assigned to her.
    In May 1858 Isaac B. Davis, as guardian of Thomas Davis, instituted a suit in equity in the Circuit court of Greene county, for the sale of the land of his ward. It does not appear when the bill was filed, but the affidavit to it was not made until the 15th of September 1858. In the bill he states that the infant was entitled to a .tract of land, which he describes, and slaves who are named, and that this is all of his property. That the plaintiff, a brother of the infant’s father, Mrs. Martha H. Henshaw, Elizabeth K. Simms, his sisters, and Philip T. Henshaw, the son of Mary A., another sister, an infant under twenty-one years, are all the parties, who in the event of the death of Thomas Davis, would be interested in the land. He makes these parties and Thomas Davis, E. K. Durrett and his wife, defendants, and asks for a sale of the land, and that one-third of the proceeds be invested, and the interest paid to Mrs. Durrett.
    Answers were filed by guardians ad litem of Thomas Davis and Philip T. Henshaw. The answers, however, commence in the form of an answer of the infant by his guardian ad litem; and there is no evidence in the record that they were sworn to; E. K. Durrett and wife answered, concurring in the prayer of the bill.
    The cause came on to be heard on the 17th of November 1858, upon the answers of the guardians ad litem, and Durrett and wife, and upon the bill taken for confessed as to the other parties, upon the return of the subpoenas executed, as stated in the decree, when the *court made a decree appointing commissioners to sell the land, upon the terms of cash for enough to pay the expenses, and for the balance upon a credit of one, two, three, four, five and six years, with interest to be paid annually, from the day of sale.
    During the same term of the court, Isaac B. Davis resigned his office of guardian of the infant defendant Thomas Davis, and the court made an order in the cause, that the fact of his resignation be suggested on the record, and this suit abate as to him; and it further appearing that the defendant Elijah K. Durrett had qualified as guardian of the said infant defendant, it was ordered that the suit should be proceeded in in the name of the said Durrett, as guardian of said Thomas Davis, as plaintiff.
    In January 1859 the commissioners proceeded to sell the land, when Peter C. Durrett became the purchaser at the price of $17,112.50; and paid in cash $300, and gave his bond, with I. B. Davis as one of his sureties, with condition to make the payments as prescribed in the decree. And the commissioners having reported the sale, the court by its decree of June 21, 1860, confirmed the same.
    The commissioners who were authorized to collect the purchase money for the land, reported their collections from time to time; and in February 1865 the whole purchase money seems to have been paid, and invested either in certificates of debt of the State of Virginia or of the Confederate States.
    In November 1870 Thomas Davis, who was still an infant, by his next ifriend Daniel Miller, filed a petition to set aside the proceedings in the cause, on the grounds, 1st. That the bill did not state plainly all the estate, real and personal, which belonged to the petitioner. He is informed that his father, at the time of his death, was *farming on his estate, and had horses, stock, farming implements, &c., worth several thousand dollars. 2d. That the proper parties were not before the court at the time the decree for the sale was made. Isaac B. Davis, though a party as guardian, was not a party in his own right; nor was Mary A. Henshaw; and the bill does not state she was dead, though it makes her son a party. 3d. Because the cause was not properly matured for a hearing ; the answer put in by the guardian ad litem being in fact the answer of the infant, when it should have been the answer of the guardian ad litem. And if it could be considered the answer of the guardian ad litem it was not sworn to. That moreover the parties who did not answer the bill were summoned to answer at rules in June, and the bill was not filed until September; and under the statute the suit should have been dismissed. 4th. That the testimony taken to prove the propriety of the sale, was not taken upon interrogatories agreed upon by the guardian ad litem of the infant, nor was it taken in his presence when he was so disconnected from all other relations to the cause as to give the interest of the infant the protection of his whole undivided attention. Fourth. It was error to decree a sale of the land until the dower of Mrs. Durrett had been assigned to her, or she had agreed, in some lawful way, to accept the interest upon one-third of the proceeds o f sale or the then value of her dower estate. And this not being done, tended to depreciate the market value of the land. 5th. Because neither Isaac B. Davis nor Elijah K. Durrett was ever the lawful guardian of Thomas Davis.
    The cause came on to be heard upon the petition of the infant defendant, on the 23d of November 1870, when the court decreed that the decrees entered in the cause on the 17th of November 1858, and on the 21st of June 1860 be set aside; that the sale of the land to *Peter C. Durrett be also set aside, and that he deliver possession of the same to Isaac B. Davis, the guardian of Thomas Davis. And a commissioner was directed to take certain accounts. From this decree Peter C. Durrett applied to this court for an appeal; which was allowed.
    ffm. Green; for the appellant.
    Field & Gray, for Thomas Davis.
    
      
      Sale of Lands of Infant—See Lancaster v. Barton, 92 Va. 623, 24 S. E. Rep. 251, and Smith v. Henkel, 81 Va. 524, citing the principal case; Zirkle v. McCue, 26 Gratt. 517, and note; Walker's Ex’or v. Page, 21 Gratt. 636; Blackwell’s Adm’r v. Bragg, 78 Va. 529. See also, Dunfee v. Childs, 45 W. Va. 155, 30 S. E. Rep. 102.
    
    
      
      Same —.Regularity — Presumption.— See Smith v. Henkel, 81 Va. 528; Hull v. Hull, 26 W. Va. 25; Hull’s Adm’r v. Hull’s Heirs, 35 W. Va. 156, 13 S. E. Rep. 49; Pennybacker v. Switzer, 75 Va. 687, citing principal case. See also, Dickel v. Smith, 38 W. Va. 635, 18 S. E. Rep. 721.
    
   Staples, J.,

delivered the opinion of the court.

This case has been very ably and elaborately argued; many authorities have been cited, and much valuable learning displayed. The industry and researches of counsel on both sides have relieved the court of much labor, and rendered unnecessary any extended discussion of the various questions presented by the record. I do not propose to attempt to follow the learned counsel in the wide range they have taken, but simply to give the conclusions to which the court has arrived, with a brief statement of the reasons upon which these conclusions are founded.

It is perhaps better to consider the objections taken to the proceedings and decree for the sale of the appellee’s land, in the order in which they are presented by him in his petition for a rehearing.

And first, it is suggested that the bill did not plainly state all the estate both real and personal which belonged to the appellee, as required by the provisions of the second section of chap. 128, Code of 1860.

The bill states that David W. Davis, the father of the appellee, died in February 1855, intestate, seized and possessed of a tract of land, which is the subject of controversy, and a number of slaves, whose names and ages *are given; and that this constituted all the estate belonging to the appellee. These averments are fully sustained by the evidence taken and filed by the guardian before the decree for the sale of the land was rendered. The appellee did not attempt, in the court below, to controvert this evidence; but contented himself with a general averment, that, as he had been informed, his father, at the time of his death, was possessed of stock and farming implements which must have been worth several thousand dollars. All of which may be true, and the statements of the bill also true, as the property may have been sold by the personal representative, and the proceeds exhausted in the payment of debts.

It is to be further observed that the application of the guardian for a decree to sell the appellee’s land, was based upon grounds which would have justified the sale even though it had appeared on the face of the bill that the appellee then owned all the property claimed in his petition.

But a more conclusive answer is, that although a purchaser, at a judicial sale, may be required to see to the regularity of the proceedings upon which the jurisdiction of the court is founded, he is not bound to 'investigate the truth of the matters stated in the bill and deposed to by the witnesses touching the estate owned by the infant. The title cannot be affected because the case made by the record happens not to be warranted by the facts. This principle received the unanimous approval of this court in Walker's ex’or vs. Page, 21 Gratt. 636, 645. It was there held that the infant cannot reopen the case, and introduce evidence to contradict that already given and relied upon by the court that entered the decree.

The second objection set forth in the petition, is for want of proper parties. It is claimed that Isaac B. Davis, *the guardian, ought to have been made a defendant in his character as heir, inasmuch as the statute requires that “the infant and all those who would be his heirs if he were dead, shall be made defendants: ’ ’ that the main object of this provision is to afford the infant the security derived from the presence of the next of kin before the court.

The suit was brought by Isaac B. Davis, and the bill verified by his affidavit; and when he ceased to have any connection with the case as. guardian, he united as surety in the bond given for the payment of the purchase money. It is clear, therefore, that in his opinion the interest of the appellee was promoted by a sale. If he had been made a party as heir, he must necessarily have assented to the statements made by himself as guardian. What other assurance could he have given? What other representation could he have made, that would in any wise have enured to the benefit of the appellee. Are we to vacate the decree and the sale upon some vague and undefined notion that the appellee possibly has sustained damage because the party asking for the sale as plaintiff was not before the court as defendant? this would indeed be to sacrifice substance for the merest shadow. Isaac B. Davis having by his active agency obtained the decree, being a party on the record when it was rendered, having united with the purchaser in the execution of the bond, can never' be heard to impeach that decree, or the title acquired under it. But let it be conceded that he may impeach it, how is the appellee affected? What cause of complaint has he if the purchaser is willing to incur the hazards of future litigation? It is not for him to object to the sale because the purchaser has not acquired a perfect title.

The appellee, in his petition, made the further objection *that Mary A. Henshaw, his paternal aunt, was not before the court. I understand his counsel, however, in the printed note of argument, as abandoning this ground, and very properly so; because, as he well said, “the court was justified in taking the statement in the bill as an averment that the said Mary A. Henshaw was dead; and that Philip T. Henshaw, one of the defendants, was her only child.

In thus disposing of the objections for the want of proper parties, I do not wish to be understood as conceding, that the learned counsel for the appellee is correct in his interpretation of the statute, when he says the main purpose in view was to protect the interests of the infant, in requiring those who would be his heirs to be made defendants. This is a very grave question, not necessary now to be decided, and no opinion' is intended to be expressed upon the point.

The third error assigned by the appellee is, that the cause was not matured for a hearing according to law at the time the decree was rendered. The first branch of this objection, is based upon the ground, that although an answer was filed by the guardian ad litem, it was not in fact his answer, but that of the infant; and if, in any view, it can be considered the answer of the guardian ad litem, it was not verified by his affidavit.

It is true the answer purports to be the infant’s by his guardian ad litem; but it is signed by the latter, and a careful reading will show that it is in fact his answer. It is the opinions, statements and responses of the guardian that are given; and however the judge or clerk may have regarded or termed it in the hurry and confusion of the court, it has the same effect as if it was formally designated and filed as the answer of the guardian in his proper person.

It is also true it does not appear that the answer was *sworn to. But it may have been done in open court, and the entry omitted by the clerk, or the paper containing the endorsement lost or mislaid during the war, at the time the public records were taken from the clerk’s office and concealed in the country. We are not to presume that the able and efficient judge then occupying the bench was ignorant of a plain provision of the statute requiring such oath, or that he would have received and acted upon an answer not in conformity with these provisions. Every reasonable intendment should be made in this court, in favor of the regularity of the proceedings below, where the contrary does not ' plainly appear. And this upon the maxim, omnia praesumunter rite esse acta. More especially ought this to be the case after this lapse of time, in favor of a bona fide purchaser for value, and in support of a sale clearly established to be for the benefit of the infant at the time it was made.

The second branch of this objection, is, that the suit was brought to the June rules, and the defendants summoned then to appear ; and yet the bill was not filed or sworn to until the ISth of September following: Consequently the suit stood dismissed for want of a bill, by the express provisions of the statute.

The law certainly requires the bill to be verified by the oath of the guardian. It is perhaps more regular that this should be done when the bill is filed; but it is not indispensable. The main object of the statute, in requiring such oath, is, I imagine, that the court may have the assurance, derived from the guardian’s oath, that the averments of the bill are true; that the interests of the infant will be promoted by a sale; and that the guardian himself honestly entertains this opinion. And clearly this object is fully attained if the bill is sworn to at any time before the court acts upon it and renders the decree of sale. Here the decree was rendered at the *November term, and the bill sworn to in the preceding month of September; which, for all practical purposes, was the same thing as if the oath had been taken when the bill was filed.

As to the other objection, that the bill was not filed in due time, it is sufficient to say, that it might have been filed at the June, July, or August rules, without new process against the defendants. The decree substantially recites that the process was returned properly executed, the bill was filed in due time, and all the steps regularly taken to mature the cause as to the defendants. Upon the authority of numerous cases, these recitals must be held conclusive in this court. Craig v. Sebrell, 9 Gratt. 131; and cases there cited.

The 4th objection is, that the depositions were taken and certified by the same person as commissioner who was acting as guardian. The learned counsel, in his printed notes, very rightly does not attach much importance to this objection, and it may be dismissed with a- single remark, that there is nothing incompatible with the interests of the infant, in the guardian ad litem acting as an officer to take the depositions; nor is there any thing in the letter or spirit of the statute which militates against it.

The fifth ground presented in the petition, is the supposed error of the court in decreeing a sale of the land until the dower of Mrs. Durrett was assigned her, or she had agreed, in some lawful way, to accept the interest upon one-third of the proceeds of sale; and that a sale of the land before that obstacle was removed, tended to depreciate the market value of the property. The obvious answer to this, is, that Mrs. Durrett, in conjunction with her husband, filed her answer to the bill, consenting to a sale. The sale was accordingly made, and her part of the proceeds, no doubt, properly secured to her. So far from the market value of the property being depreciated *by this course of proceeding, the infant was benefited by a sale of the entire tract unencumbered with the lien of the dower estate.

The sixth and main objection, was reserved by the learned counsel for appellee, to be last presented in the petition. It is that Isaac B. Davis, in whose name the bill was filed, was never the legal guardian of the appellee; he having been appointed by the Circuit court of Greene county "in chancery sitting.” It is insisted that the Chancery courts are not authorized to appoint guardians for infants : but that this power appertains exclusively, to the Circuit or County courts in the exercise of their common law or probate jurisdiction.

There is no question but that the English courts of chancery from an early period, have assumed as a part of their jurisdiction, the power to appoint guardians where no testamentary guardians existed. However it may have originated, or upon whatever principle or necessity founded, it is now. an established doctrine of these courts, and is never called in question. Tyler on Infancy and Coverture, page 254; 2 Story Eq. Ju., sec. 1333. In some of the States of the Union chancery guardianship, as recognized in England has never been adopted; but the jurisdiction in such cases is confided exclusively to surrogates’ or orphan’s courts; special tribunals bearing in many respects a strong resemblance to the English ecclesiastical courts. They are clothed with power to issue letters of guardianship to revoke them when necessary and to supervise generally the conduct of such fiduciaries and the settlement of their accounts. The whole matter is regulated by statute, the chancery jurisdiction in such cases being wholly unknown.

In Virginia the practice in the earlier history of the country was in conformity with the English course of *proceeding. As far back as 1795 the General court determined it had no authority in the matter of appointing guardians. 3 Rob. Prac. 467. And in Ficklin v. Ficklin, 2 Va. Cas. 204, the same court in 1820 decided that the appointment of a guardian by election of the infant, after he arrives at the age of fourteen, is made on the chancery side of the County court, and not on the common law side. In a note to that case Judge Brockenbrough states that the Superior courts of law in this State had uniformly refused to appoint guardians, and receive the election of infants. And he expresses the opinion that, as the courts of chancery have such a controlling power over the estates, government and education of wards, and over the conduct of guardians, they are the proper tribunals before whom the election by an infant of his guardian should be made. It will be observed that Judge Brockenbrough is speaking of guardians by election of the infant. He did not mean, I take it, to suggest that a different jurisdiction prevailed as to infants who had attained fourteen and those who were under that age. In the nature of things no such distinction could ever exist unless established by some express legislative enactment. The reference is no doubt, to the rule of the common law by which the minor, upon reaching the age of fourteen, was competent to select his guardian, and the person thus selected, if possessed of the proper qualifications, was invariably appointed by the court.

According to the authorities just cited, it is clear that prior to the revisal of 1819, and subsequent to it, the Chancery courts exercised the power of appointing guardians; and they were considered the only tribunals clothed with the power of making such appointments. They must equally possess it now, unless a change was made by the revisalkof 1849-’50. The settled rule, however, in construing the Code, is, that the old law was *not intended to be altered, unless such intention plainly appears. Parramore v. Taylor, 11 Gratt. 220; Owners of Steamboat Wenona v. Bragdon, 21 Gratt. 685.

The statute found in the Code of 1849, merely declares that the Circuit, County or Corporation court of any county or corporation, in which a minor resides, may appoint a gaurdian for him. Now, conceding that this provision confers upon the Circuit and County courts the power of appointment as courts of probate, upon what principle is it to be construed as taking away the jurisdiction of the Chancery courts. According to any rule of interpretation the inference is that a cumulative, and not an exclusive, jurisdiction was intended. Wayland v. Tucker, 4 Gratt. 267.

It has been argued, however, that by the express terms of the 11th section, chap. 128, Code of 1860, the Chancery courts are authorized to remove and appoint guardians; but not to appoint in the first instance; from which it is to be fairly inferred the intention was to limit them to cases of removal and appointment. The same provision, substantially, is in the Code of 1819; and was the law long' anterior thereto. But it was never'construed as limiting the general jurisdiction of the Chancery courts upon the subject; a jurisdiction which had existed from our earliest history, and was based upon principles lying at the foundation of our system of equity jurisprudence. As a general rule a statute conferring power upon a court in special, enumerated cases, is not to be construed as divesting a general jurisdiction in cases of an analogous nature not enumerated.

But if the chancery courts have no power to appoint guardians in the first instance, but only to remove and appoint, it would seem to be clear where they have appointed, the-validity of that appointment cannot be questioned in a collateral proceeding. No other court, *unless it be an appellate tribunal, is authorized to examine the records to ascertain whether the occasion was one for the proper exercise of the power in question. They are courts of general jurisdiction, and their decrees and orders are conclusive until reversed by a proper proceeding. This principle has received the sanction of the courts in innumerable instances. It is only necessary to refer to one, the case of Fisher v. Bassett, 9 Leigh 119. In that case Judge Parker said: The distinction between the acts of a court having jurisdiction over the subject matter under some circumstances, and those of one which in no possible state of things can take jurisdiction over the subject, is a sound and sufficiently intelligible one to guide our judgments in the present case. If under any ciixumstances the Hustings court could grant administration to Scott, it had jurisdiction of the subject, and must judge of those circumstances. See cases cited in Devaughn vs. Devaughn, 19 Gratt. 563; Ballard vs. Thomas, Ibid. 14. In the present case, if the ward may question the appointment, so may the sureties in the guardian’s bond, and so may a stranger sued by the guardian for any matter affecting the ward’s estate. Indeed this case affords in itself a most apt illustration of the evil results of the doctrine asserted. An appointment made by a court of general jtirisdiction, recognized by another, is to be pronounced utterly void to the extent of reversing a decree and invalidating the title of a bona fide purchaser for value.

Before'a result of that sort is reached we should be clearly satisfied that the law on the subject is express and mandatory.

These constitute the main, if not all the objections, urged by the appellee to the proceedings and decree under which his land was sold. In considering them this court has not been unmindful of the importance of a *faithful observance of the various statutes enacted for the benefit of the infant, and for the protection of his inheritance. The power to sell the estate of those who have no capacity to be heard is a very grave one, and only to be exercised with great caution. Still it is an indispensable power, and is vested in some tribunal in .every well regulated State. Sound policy requires that judicial sales shall not be brought into disrepute by the practice of vacating decrees for slight and minute defects in the preparation of causes, when the true meaning and spirit of the law has been observed. If the court clearly perceives that the sale when made was an advantageous one, it ought not to regard mere technical informalities which do not substantially affect the validity of the proceedings, or the rights and interests of the infant. In determining whether the sale was a beneficial one, we must look to the circumstances as they existed at the time it was made, and not to subsequent events. The purchase money may be lost by the mismanagement of tke court, or its officers, or by injudicious investments, or by the occurrence of war; but surely such consideration ought not to affect the purchaser. These are matters with which ke cannot interfere, and by which he should never be prejudiced.

In considering the numerous objections urged in this case, I have made no reference to a very important question very ablj’’ discussed by counsel. And that is, conceding the validity of these objections and the necessity of reversing the decree, whether the appellee is entitled to the restitution of his property as against the appellant, who stands in the attitude of a bona fide purchaser for value. Whatever may be the current of authorities in other States, the question may be regarded, to some extent, an open one in Virginia. The tendency of opinion has been that the title falls with the reversal of the decree, *except so far as the sale is within the influence of the statute.

The decision of the question is, however, wholly unnecessary in this case, because, as has been seen, the objections are insufficient when considered singly or collectively. Nor are we called on to consider any of the proceedings subsequent to the sale. The decree of the Circuit court is based upon the alleged irregularities in the conduct of the suit; and to these our opinion is confined.

For the reasons stated, the decree of the Circuit court must be reversed, and the cause remanded for further proceedings.

Decree reversed.  