
    Mary A. E. R. Hill et al., plaintiffs in error, vs. Daniel S. Printup, defendant in error.
    (Atlanta,
    January Term, 1873.)
    Sale of Minor’s Estate — Minor Not a Party — Effect.*  — A Judge of the ' Superior Court in this State did. not have the power, either in term or at Chambers, under the Act of 20th February, 1854, or under the provisions of .any statute, of of the common law, to grant authority to a trustee to sell and convey land held by said trustee for an 'infant cestui que trust, unless such infant was made a party to the *proceedings instituted for that purpose by a representative ' properly appointed.
    Trusts! Sale. Parties. Infants. Before Judge Harvey. Floyd Superior Court. July Term, 1872. .
    Mary A. E. R. Hill and her husband, H. B. Hill, filed their bill against Daniel S. Printup to set aside a sale of property, held in trust for the said Mary, made by her father, James B. Perkins, to Daniel S. Printup, on August 25th, 1865. The bill alleged that the sale was made under an order of the Superior Court of Floyd county, obtained by Perkins, as trustee, at the January term, 1861, upon a petition filed by him for that purpose; that when the deed was made by said trustee under the aforesaid, proceedings, the said cestui que trust entered her full and free consent <pn the same, and that the Superior Court, at the January term, 1866, passed an order affirming the-sale. The bill further alleged that at the time of the granting of each of the aforesaid orders, and of the consent to the said deed, the said Mary was a minor; that she was not -made a party, in any manner, to the proceedings had before said Court; that Printup purchased with full notice of all the facts aforesaid; that the proceeds of the said property was squandered by said trustee, and not- applied to the use and benefit of the said cestui que trust.,
    
    Upon demurrer filed the bill was dismissed and; complainants excepted.
    Wright & F'eatherston, for plaintiffs in error.
    Printup & Fouche ; Underwood & RowEee, for defendant.
    
      
      Salé of Minor’s Estate — Minor Not a Party — Effect.—A judge of a superior court of .this state has no power to authorize the sale of a trust estate in which minors are the beneficiaries, unless the minors are made parties by representatives properly appointed. East Rome, etc., Co. v. Cothran, 81 Ga. 366, 8 S. E. Rep. 737, approving the principal case.
      • Same — Same.—The court does not require jurisdiction over ah infant for all purposes, and it will be idle to say, that' the mere naming of infants as sole defendants in a bill or respondents in a petition would give the court jurisdiction to authorize the sale even of their trust property for in such cases they are put upon the same footing as adults as to service or notice before a decree or order can be made affecting them or their estates. Richards v. East Tenn., etc., Railroad Co., 106 Ga. 653, 38 S. E. Rep. 193. Infant beneficiaries in a trust estate must be made parties. Saime authority,-p. 670, approving principal case. 1-
      Same. — The case of Augusta v. Walton, 77 Ga. 525, cites principal case with approval.
    
   Trippe, Judge.

Before the passage of the Act of February 20th, 1854, a-Judge at Chambers had no power to order the - sale of trust property: 10 Georgia, 429. By that Act he might so order “where all parties in interest are represented and consenting, *and where there is no question of fact in dispute, * * * and such orders and decrees shall be as valid as if passed and made during the regular session of the Superior Court of the county on the verdict of a jury.” This Act implies that if such order be obtained in term time, it must be on the verdict of a jury. If it be granted at a regular term, then it is from a Court of chancery, and chancery jurisdiction is conferred in this State upon the Superior Courts, and not upon the Judges thereof: 10 Georgia, 429; Cobb’s Digest, 467.

This was the state of the law before the Code, and a verdict of a jury was necessary when the order or decree was granted at a regular term. By section 4147, a verdict may not now in all cases'be required. .But whether the application be made at Chambers or at a regular term, all parties in interest must have notice and be represented or made parties to the proceedings. If a minor be interested, and have a guardian, that guardian must be a party, and if he have no guardian there must be a guardián ad litem appointed. These are the present statutory provisions, as will be seen by sections 4164, 4165 of tire Code, and they are but ’affirmations of what the law was before.

In the argument, authority was quoted from 1 Daniel Chancery Practice, 205, that “an infant defendant is as much bound by a decree in equity as a person of full age,” etc. The very quotation shows that the infant in such cases is a defendant and a party, and the same authority says it is the rule to serve the minor personally with the process.

In all Courts, English or American, all parties in interest, whether sui juris, married women, infants or lunatics, must: be made parties to proceedings affecting their interests, and must have notice: 30 Georgia, 394; 2 Mad. Pr., 351. As a general rule, a trustee cannot institute proceedings in a Court of equity, relating to the trust property, without making the whole of the cestuis que trust parties: Hill on Trustees, 543; 1.Dan. Ch. Pr., 311. The cases where it is not necessary to make them parties are such as trustees acting under a deed, with power to sell and to apply the proceeds, or where the interest *of the cestui que trust is collateral to the rights of the plaintiff trustee and the defendant to the suit; as where a bill is filed by one trustee against his co-trustee, to compel him to replace the trust fund, which had been misapplied or appropriated by him: Hill on Trustees, 543, 545; 3 Ves., 75; 1 Dan. Ch. Pr., 312. If it be a suit at law for asserting or defending the legal title, and the legal interest be in the trustee, he may, alone, be a party.

In the case under consideration, the father was the trustee of his infant daughter. In an ex parte proceeding, he obtained an order to convert land into money. He was not under bond as trustee, and no bond was required to secure to the infant the proceeds of the sale. The infant did not have a guardian, whose duty it would have been to have protected her rights, and who would have been liable for his failure so to do.

We do not think an order was legal or valid giving authority to the trustee to make such a change as this in the property of a minor cestui que trust without the guards the law provides for her protection being observed. The order obtained after the sale from the Judge, ratifying what had been done, was procured upon the written consent of the cestui que trust, who was still a minor, being quite a young girl, and incompetent to give her consent so as to be bound by it. The bill charged knowledge of all these facts on the part of defendant.

We-are of opinion that the Court erred in sustaining-the demurrer and dismissing the bill.

Judgment reversed.  