
    Prutzman, et al. vs. Pitesell.
    Appeal from a decree of the Court of Chancery. The , petition of the appellee against the appellants, filed on the! 12th of June 1804, stated, that on the Sth of October 1796,1 the appellants filed a bill against him, he being then an in-' fant, for the conveyance of part of a tract of land called Paraphrase and The Besurveij on John’s Delight, containing 166 acres, lying in Frederick county. That a commission issued to appoint a guardian, and take his answer, on the 19th of November 1796. That Henry Kuhn was appointed his guardian, who answered and admitted all the facts contained in the bill. That no evidence was taken to establish the truth of the allegations contained ill the bill, and that they cannot be established; and that the decree was unduly and improperly obtained. That the petitioner came of age the 18th of May 1804. Prayer for a revision and reconsideration of the decree, and for general relief. The defendants, (now appellants,) by their answer, admitted the filing of their bill, the appointment of a guardian, and the answer and decree, but averred that the facts stated in the bill were true and could be established, aud that the decree was fairly and properly obtained, aud they pleaded the decree and proceedings in bar of the. relief prayed by the petition. , •
    The proceedings on the bill referred to, with the decree for a conveyance, &c. passed the 2d of March 1797, were exhibited, and testimony was taken under commissions issued for that purpose, ; i •
    • Kilty, Chancellor, (February 1807.) This case, which was argued at the present term by the counsel for the corn-L . plainant and the defendants, arises under the act of No» vember 1773, ch. 7, for the amendment of the law, being a petition for the reconveyance of land, which' it appears was-on the second of March 1797; decreed to be conveyed in a suit in which the present defendants were complainants, and the petitioner, then an infant, the defendant. The petition is not in form exactly according to the act, or to the proviso in the decree, and the decree itself is only incidentally mentioned, and is not made a part of the petition. But this defect is supplied by the answer in which the decree is referred to, and the petition may be considered as an application, to be permitted to show cause why the said conveyance ought not to have been ordered or directed. The chancellor is not apprised of any decision,, or former suit, under this act, and he must therefore be left to form his own opinion as to the construction of it, on which the counsel very widely differ. His opinion is, that in order to show cause, the party who was an infant may, under this act, examine the proofs for the said decree, and resort to any-error on the face of the decree, tending 'to show that, the conveyance therein decreed ought not to have been ordered or directed, and therefore that the decree and proceedings therein cannot be pleaded in bar of the present-relief prayed, as is contended by the plea put in with the answer of the defendants. Such a plea would entirely frustrate the intent and object of the act, and would be, as is expressed in the case of Fountain vs. Caine and Jeffs, (1 P. Wms. 504), at the same time that the court gave him liberty to show cause, to tie up his hands from showing cause. In a case where such a plea was allowed,(Gregory vs Molesworlh, 3 Jllkyns, 626,) the bill liad been brought by an infant, by his prochein amy, and of course the complainant could not have the benefit of a proviso similar to the one in the present decree; and in Napier vs. Effingham, (2 P. Wms. 401,) an infant complainant was allowed to show cause after he came of age.
    
      , Where a bill had Ijet^n filed in chancery against an infant for a specific performance of a parol agreement entered into by th«* anceMor, to convey bind to his daughter, and on the answer of his guardián, and las agreement, a conveyance Mas decreed. On (he arrival at age of the infant, he petitioned wider the act of November 1773, ch. 5, for % reconveyance---Held, that in order to show cause why a revision and reconsideration of the decree should take place, the pav¡v, who was an infant, may examine the prooís fbi the decree, and resort to any crier on its lace, , tending to show that the conveyance d< cm d, ought nor to have been (hrcctedjmid also that sinli decree and the pm* feedings thuein, • could not be p eaded in bar of M«e relief prayed*
    The petitioner is not confined 10 the former proceedings only, but ; may by further proceedings shew i himself entitled to
    • An infant is no*, bound by the an-ewer of Jus guar dian if he .-hour Ins dissent to it L within the proper
    . 'Where in Mich a case, the com r of ehancerv d¿*areed a fteosiveyancc of land, which# by a longer decree that ecuri bt*d dsyectut $© ha conveyed*
    
      The chancellor considers also, that the petitioner is not confined to the former proceedings only, but may, by further proceedings, show himself entitled to relief. This however is not a veiy material inquiry at present, as the, parties have consented to the admission of the testimony exhibited in the first suit, and a commission has issued in this case.
    
      If Upon this testimony the chancellor was satisfied that the contract of Henry Pitesell, the father, with his (laugh-, ter Elisabeth, was sufficiently established to entitle her to a decree for a specific performance, it would be unnecessary to go into the inquiry as to the error of the decree against the petitioner, in order to determine whether such decree ought to have been directed. .. But his view of the result of the testimony being different, the inquiry, however unpleasant, must be made. Though it may be remarked, that his predecessor, if the present case had.come before him, would have been bound to examine into his decree, and to determine accordingly, if any error was found in it, and so also in cases of bills of review.
    On the established principles of equity, an infant cannot be bound by the answer of his guardian, if lie shows his dissent to it within the proper time, although such answer will be evidence against him, if at such time he neither amends nor makes a new answer, which he may do. Loid Jlardv'ickc, in the case of Bennett vs. Lee, (% J}ik. 531,^ remarked, that the infant was justified in saying that his guardian had mistaken his case entirely, and that the court could not refuse his putting in a better answer, and making the best defence he could.
    The petition in this case must be considered as tantamount to making a better answer than that of the'guardian, and a better defence to the former suit; and if considered in opposition to the bill, without other evidence, will show, that if such had been the answer, the decree would not have been made, and without further evidence cannot be supported. If the petitioner (setting aside the present evidence,) is entitled to relief from the decree having been made on the answer, to which he now dissents, his claim will be strengthened by attending to the manner in which the answer was put in, independent of the interest, alleged to be proved under the commission, which the chancellor is willing to put out of the case, as to the guardian.
    The bill filed in October 1796, charges that Henry Pite* sell expressly, in consideration of the services rendered by Elizabeth, his (laughter, (and so particularly alleged at the time by him,) and of his natural love and affection for her, and her son, did promise tb, and contract with her, to" snake over and convey in fee simple a parcel of land as therein described* which by the said promise and contract was to be conveyed so as to secure a separate estate therein to her for life, with remainder in fee to her son, and wholly to exclude her husband from any advantage from the same.
    If an admission had not been made by the answer, this parol agreement, so particular as to the terms of the conveyance, would have required strong proof to support it. But the answer roundly admits the whole — the consideration* — >the contract — the life estate, and the remainder; and also, (hat the land was accurately described in the plot exhibited by the complainants. Admitting that the guardian believed the facts to be so, it cannot be thought that he liad such a knowledge of them as to make it his duty to admit them, and his answers to the interrogatories in the last commission show that he had not. It appears that this answer was signed for the defendant by a solicitor of this court, and it appears further, that an agreement was signed by him, and by the counsel for the complainants, that the chancellor should decree upon the bill and answer, there being no evidence necessary to be taken; and that a decree should pass for the land as prayed; which agreement and answer by the guardian both went beyond the proposition made by the late chancellor in his remarks of November 179J, which was only for a consent to take depositions before a single magistrate. And it will be found, that the second section of the act of 1778, ch. 7, which renders the consent of the guardian necessary, extends only to lands chargeable with the payment of money or tobacco, and not to agreements to convey. The chancellor, therefore, takes up this case as if a bill was brought before him by the present defendants for a conveyance, on the proceedings and the evidence now produced, not. only without the benefit of the admission in the guardian’s answer, butasif the equity of the bill was denied by answer as strongly as it must be inferred to be from the present petition. And if in that view he finds that Prutzman would be entitled to relief, it will be proper to dismiss the petition; and if otherwise, to decree according to it. The chancellor is disposed to carry agreements into effect in every case in which it can be- done consistent with the established principles of courts of equity, and has doubted the propriety of many cases in which, from too great strictness, the aid of the court has been refused; but the present case is at best & very doubtful one on the evidence. The expressions of Henry Pitesdl seem to be rather proofs of an intention, than of an agreement. The particular mode of conveyance intended or .agreed is not shown by the evidence. The bill states, that the land was to be conveyed so as to secure a separate estate therein to Elizabeth for her life, with remainder in fee to her infant son; and the decree was for a conveyance to the son in trust, for the sole use of Elizabeth during her life, which, though substantially the same in effect, shows that the agreement relied on was not precise in its terms. The part performance of this parol agreement by giving possession, is not clearly established. The moving bis daughter to the land in question, to reside on a part of it, and suffering her to receive the rents, might, from their relationship, have taken place without an agreement to convey; and the father appears, notwithstanding some ot his declarations, to have exercised acts of ownership on the land, particularly from the evidence on the last commission; and the improvements relied on are not of a very valuable kind. And on these grounds the chancellor is not satisfied that there was such an agreement to convey as would have bound the father in his lifetime. The consideration of the services of Elizabeth, if material as to her, cannot extend to her son. There is also another circumstance against the right of the present defendants, under the decree in the former suit. The first bill 
       stated, that Henry Piiesell promised to convey to Elizabeth, a parcel of land, being 100 acres of The Resurte y on Smith’s Hap, which 100 acres were to run up to a road called Heller’s school road. The second bill stated the land to have been resurveyed, and the part contracted for to have been, (as in the other bill,) in the tenancy of Eianlel Fry, and to be accurately and particularly described in the courses and plot exhibited. This plot makes the Contents 1,66 acres, and it does not appear from what data the coiirs'es Were run, or when or by what authority it was made, or wherefore the number of acres should have been more than 100 as at first claimed, and as proved to be the quantity intended, by the bulk of the testimony, and particularly by that of Thomas Petty, who says that Henry Piiesell intended the 100 acres to run up the branch to John Weller’s School road, and he allowed that it would contain 100 acres; ánd if to said road did not contain 100 acres, then it should go over the road so as to include that number. The exhibit No-. 1, could not be considered as evidence, except by the admission in the answer, which has already been remarked, and it is plain from the evidence of Kuhn, under thé last commission, that he had no actual knowledge of the correctness of this survey. The opinion of the late chancellor upon the effect of the evidence, was given to the counsel in writing; and it may have been owing to that circumstance that they did not procure the testimony of the same, or other witnesses, and also to the opinion taken up and expressed in the submission, that no evidence was necessary. No reasons were assigned in the decree, and it may be presumed that this submission, and the agreement, formed the reasons; but as to the evidence, the reasons are expressed, and should have their due weight in deciding on the same evidence, or on evidence rather lessened than increased by the last commission, and it appears to be just to put the parties in their former situation. From these concurring objections to the decree, sufficient, as the chancellor conceives, to show-cause why the said conveyance ought not to have been .ordered or directed, the present petitioner is entitled to a decree of this court for a reconveyance of the land so conveyed, and for a full account of the rents and profits thereof. The hardship of the case as to Elizabeth Prutzman, or the demerit of the present 'application, are circumstances which the chancellor cannot suffer to influence his decision against'the evidence, and the principles of equity applicable to the case. Such cases have frequently, occurred, and the hardship to the persons intended to be benefitted by the ancestor, and the consequent benefic to the heir at law, were the result óf the rules of inheritance formerly in force, but now altered by our act of descents. But as to the petitioner, he was entitled to the proteciion of the court as an infant, when the decree was passed against him. He was not in a situation to appeal from it, and the present defendants will have it in their power to have the whole proceedings revised by the appellate court. Decreed, that Henry Prutzman, by a good deed, to be acknowledged and recorded agreeably to law, shall give, &c. unto tlie petitioner, llenvy. Pilcsell, and his heirs, all that parcel of land in Frederick county, part of Paraphrase and The Besurvey on John’s Delight, containing 166 acres, together with, &c. which was on the 2,9th day of March 1797, conveyed by Henry Kuhn, as guardian and in behalf of Henry Pitesell, to the said Henry Prutzman, in trust, as bv reference to the same will appear, &&. Decreed also, that John Prutzman, and Elizabeth hi.s wife, shall by a good deed, &c. give, &c. unto the petitioner, Henry Pitesell, and his heirs, all their interest and right in the said-land. De~ creed also, that the defendants account with the. petitioner for the rents and profits of the land, &c.
    From this decree the defendants appealed to this court.
    
      Shaaff, for the Appellants,
    contended, 1. That the decree referred to cannot be set aside by a bill, unless that bill suggests fraud, and that fraud be proved; and 2. That in this case there was no fraud. On the first point, he cited the acts of Nov. 1773, ch. 7, & 1795, ch. 88. Mosely, 306. 1 Harr. Ch. Pr. 251. Fountain vs. Caine & Jeffs, 1 P. Wms. 504; and Napier vs. Effingham, 2 P. Wms. 401.
    
      Bidgely, for the Appellee.
    
      
      
         There had been a bill filed in the name of Elizabeth, Prutzman, against the present petitioner, on the 10th of February 1791, the proceedings upon which were exhibited in the present case. The answer of the then guardian of the petitioner did not admit the contract as stated, and a commission issued, and testimony was taken. In November 1795, the then chancellor, by his order, considered that the contract liad not been established by the testimony taken, and proposed that the complainant, with the consent of the guardian, should take further testimony before a single magistrate, if she had any, &c. But that if nothing further was done, the bill phoulel be dismissed at the next term. Nothing further appears to 6ave been done.
    
   DECREE AFFIRMED.  