
    Seaborn Hargrove et al. vs. Martin, Pleasants & Co.
    In a suit in chancery against both adult and infant defendants, a decree rendered in favor of the complainants against all the defendants upon pro confesso against the adult defendants, and the answer of guardians ad litem for the infants, without any proof, will be erroneous as to the infants, even though time be reserved in the decree to the infants, after they come of age, to show cause against it.
    Taking a case for confessed in equity, entitles the complainant to a decree only against the party as to whom the bill has been taken for confessed ; not against the others; and if the defendant against whom no pro confesso is taken, disprove the bill, the whole will be dismissed.
    A pro confesso against an infant will not authorize a decree against him ; there must be proof; and a reservation of a right to show cause against the decree, after the infant attains majority, does not cure the error.
    Whether the reservation of a right in an infant to show cause against the'deeree after he attains majority, extends only to defects and errors in the decree itself, and is barred by a sale under the decree— Quiere.
    
    Where a decree has been rendered in the chancery courts in a suit against adults and infants on pro confesso against the former, without proof, and this court on that account reverse the decree, the pro confesso as to the adults will not thereby be set aside. The cause will proceed as if no decree had been pronounced.
    In error from the vice chancery court, held at Holly Springs, before Hon. Henry Dickinson, vice chancellor.
    On the 18th day of January, 1837, Wilson T. Oaruthers executed a deed of gift, conveying to W. Delia Fletcher Hargrove, Marquis Lafayette Hargrove, Martha Frances Hargrove, and Mary Jane Hargrove, children of Seaborn and Nancy Hargrove, a section of land lying in Marshall county, and designated as Section No. 10, Township 4, Range 2, west of the Basis Meridian of the Chickasaw cession. It is recited in this conveyance, that the parents of the grantees are to reside upon the land, and raise and educate their children, the grantees.
    
      On the 28th- of December, 1841, Martin Pleasants & Co. recovered judgment in the district court of the United States for the northern district of Mississippi, against Caruthers, for the sum of $7575 83 cents, damages and costs of suit; upon this judgment execution issued, and was returned nulla bona, and thereafter, on the 18th of February, 1844, Martin, Pleasants & Co. filed their bill, setting out these facts; and also averring that the debt on which their judgment was founded, was contracted before the deed of gift was executed; that at the time of making this deed, Caruthers was otherwise indebted toan amount exceeding all his means of payment; that in the year 1842, the complainants were taking measures for the institution of a suit in equity, for the purpose of having this deed of gift set aside as fraudulent, and that the grantees in the deed, confederating with one John T. Finley and others, with the fraudulent design of defeating this contemplated suit, permitted the section of land to be sold for taxes, when Finley became its purchaser at or about the sum of sixteen dollars; since which sale the family of the grantees has continued in the occupation of the land, as before, Finley holding the tax-collector’s deed, for the benefit of the grantees; that on the 26th of December, 1843, the complainants caused a tender to be made to Finley of the sum of $ IT 36 cents, that being the amount of (his bid for the land at the tax-collector’s sale, with sixteen per cent, per annum thereon ; and demanded from him a cancelment of the tax-collector’s deed, which he held ;■ but that Finley, although he well knew all of the circumstances of the case, refused to permit the redemption of the land; that complainants were yet willing to refund to Finley the amount paid by him for the land, at the tax-collector’s sale, with the interest allowed by law, together with any other moneys which Finley may have paid for ¡taxes.
    To this bill the grantees in the deed, who were infants, their, father and mother, Caruthers and Finley, were made defendants ; and by due service of process brought before the court.
    J. C. Alderson was appointed guardian ad litem for the infant grantees, and filed the usual answer disclaiming all knowledge, -and submitting their interests to the court.
    
      The bill was taken for confessed as to all the other defendants. No proof at all was taken in the cause; and the case was submitted for final decree upon the bill, answer, and pro confesso. The chancellor decreed the deed of gift as against the judgment of the complainants to be voluntary, fraudulent and void, and that it should be delivered up to be cancelled; that the tax-collector’s deed should also be cancelled; and that the infant defendants should be allowed a day to contest this decree until the expiration of six months after they should come of age, and a copy of it be served upon them.
    From this decree the defendants below prosecute their writ of error.
    
      Lucas, Watson and Clapp, for plaintiffs in error.
    The defendants, under twenty-one years of age, by their guardian ad litem James C. Alderson, having answered the bill, without admitting or denying its allegations as against them, no decree could be properly rendered except upon a case made out by testimony. The doctrine is well settled, that though upon a motion to dissolve an injunction, the matters stated in the bill and not denied by the answer, must be taken as true ; yet on the final hearing they must be proved or the plaintiff will fail. 4 Randolph, 451; 5 Leigh, 460, 467. In the case of Young v. Qrundy, 6 Cranch, 51, the rule is stated by Chief Justice Marshall in these words. “ If the answer neither admits nor denies the allegations of the bill, they must be proved upon the final hearing.” If-an answer is deemed insufficient, from omitting to notice any material allegations in the bill, the plaintiff must except to it and call for a better answer. If his exceptions be sustained, and the defendant refuses to answer further, his bill may be taken pro confesso generally. Coleman v. Lijnes, Ex., 4 Randolph, 456 ; Jossling v. Stewart, 4 Yesey, 619. Such is the settled law in the case of adult defendants; in this case the parties most affected by the decree, are infants, and as such entitled to even yet more favor.
    The effect of an answer, of an infant by his guardian adliiem, is to no other purpose than to make proper parties, so as to have an opportunity to take depositions, to prove the matters in question, and therefore exceptions cannot be taken to an infant’s answer. Bingham on Infancy, 133; Lube’s Equity Pleading, 69; Story’s Equity Pleading, § S71. Nor can there be a valid decree against an infant by default, nor on his answer by his guardian, but the plaintiff must make out his case against an infant by proof. 3 Johnson’s Chancery Rep. 367.
    2. The pro confesso against the adult defendants should not be permitted to operate to the prejudice of the infant plaintiff in error. They are the only parties beneficially interested against the defendants in error; nor do they sustain, to their co-appellants, such a relation, that they can be affected by their default, admissions, or acts. Had each one of the appellants, against whom a pro confesso was taken, answered the bill, and on oath admitted all of its allegations, no foundation would thereby have been laid, for a decree against the infant appellants; and the pro confesso certainly does not present a stronger case against the infant appellants, than such answers and express admissions of their co-plaintiffs in error would have done. It is submitted that a pro confesso against one defendant, will not operate to the prejudice of a co-defendant, unless the relation between the parties is such, that an answer by the former would have been evidence against the latter. And had the plaintiffs in error, against whom the pro confesso was taken, answered, their answers would not have been evidence against the infants. To the general rule that the admission of one person cannot affect another, and that the answer of one defendant, is not evidence against a co-defendant, there are exceptions ; but no one of these exceptions embraces this case. The law on this subject is stated by Chief Justice Sharkey, in delivering the opinion of the court in the case of Montgomery v. Dillingham, (3 S. & M. 647,) in these words : “ In chancery proceedings it is true, as a general rule, that the answer of one defendant is not evidence against his co-defendant, though it is, like most general rules, subject to exceptions. It does not apply, when they are all partners in the same transaction, the partnership being otherwise proved. This rule applies when a liability is to grow out of the answer; but where the joint liability is otherwise fixed, then there are many instances in which the answer of one defendant is evidence against another.” The case under consideration does not involve a partnership transaction. Nor is a joint liability of the defendants, or any liability whatever on their part, otherwise proved, than by the pro confesso. The infant appellants held no joint interest with either one of their co-appellants; and there does not exist between them and their co-appellants, Seaborn and Nancy Hargrove, an identity of interest, which will make the admissions of, or the pro confesso taken against the latter, evidence against the former; — as a condition -precedent to the right on the part of the appellees, to a decree, it was necessary that the deed of gift from Oaruthers be shown to be fraudulent; and no admission of this fact by Finley, whether made in pais, or in more solemn form under oath in an answer, or by his default in not answering a bill in which the fact was charged, and a consequent pro confesso taken against him, could be used as evidence against the infant appellants. They are the parties against whom the alleged fraud is to be established, and against whom, when established, it is chiefly to operate; between them and Finley no such relation is shown or even alleged to exist, as makes the default, acts or admissions of the latter, evidence against the former; and it is not even proved by the exhibition of .a copy, or in any other way, that Finley holds a deed for the land from the tax-collector, or from any other person, nor is it in any way whatever proved, that he had the slightest interest in said land; and that he does hold such a deed, or had any interest whatever in the land, certainly cannot be established as against third parties, by his own admission, or the pro confesso taken against him. To maintain the converse of this last proposition, would be to assert, that an individual is to be permitted, by his own admissions, or acts, to make evidence which will be allowed to operate in his own favor, and to the prejudice of another.
    . The infant plaintiffs in error do hold a derivative title under Oaruthers, against whom a pro confesso was also taken; bufc this title is protected by the well-settled doctrine, that a title or interest cannot be affected by the admissions or acts of the party, from whom, or under whom, it was acquired, subsequently to the time of its having become vested. Upon this point the authorities are clear and numerous; and as it respects the grantor of real property, it is confidently asserted, that there has been no case decided, allowing his declarations to be given in evidence against a party, who had, previously to such declarations, acquired his title. Nor is this rule varied by the circumstance that the grantor is bound by a warranty, express or implied, to assure the title or interest in question. See this subject ably discussed in the opinions of Baldwin and Allen, in the case of Petit v. Jennings, 2 Robinson’s Virginia Reports, 676. See pages 679, 680, 681, 697, 698, and the numerous authorities there cited. See also Herricks v. Selzer, 4 Howard, 506.
    It does not necessarily follow that a decree is to be rendered against a party, as to whom a complainant’s bill is taken as confessed. The circumstances of the case are to be regarded, and if a co-defendant answers, and disproves the bill, or if it appears that no decree can be rendered against the defendant in default, without affecting a co-defendant, against whom the plaintiff is entitled to no relief, the bill must be generally dismissed. In this case the defence of the appellants in default, dbes not rest on matters separate and distinct, and applying only to themselves; nor have they rights which can be reached by any decree, which would not virtually be a decree against the infant defendants also. If then the bill should have been dismissed as to the infant appellants, it should also have been dismissed as to their co-appellants. Were it otherwise, it would lead to this absurdity, that after dismissing the bill as to the infant appellants, a decree would be rendered in the cause, by which their rights would be materially affected and prejudiced. 4 Leigh, 579; 10 Johnson, 524; 2 Howard, 912.
    If the foregoing views be correct, the bill should have been' dismissed generally, and now this court must render the decree which should have been rendered by the court below. How. and Hutch. 532, sec. 9.
    
      Trotter and Stearns, for defendants in error.
    In this cause, the. defendants in error, who were the complainants below, took a decree upon the answer of the infant defendants, filed by their guardian ad litem, and pro confesso as to the other defendants.
    So far as Hargrove himself is concerned, we conceive that the pro confesso against him- estops him from questioning the correctness of the decree, if it be warranted by the allegations of the bill. The conveyance from Caruthers to the children of Hargrove, filed with the bill as Exhibit B, sets forth that it was the object of the grantor to provide a settlement of land upon which the parents of the grantees were to reside, and raise and educate them. This gave to Hargrove and his wife the right to the use and occupation of the land conveyed, until such time as their children should attain the age of majority. Therefore it was that we made them parties defendant. The decree operates, as to them, only upon their usufructuary interest in the land, and must be regarded as in the nature of a judgment by default, which is conclusive against their rights under the deed.
    The infant defendants below answered by their guardian ad litem, in the usual form. The decree directs the service of a copy upon them after they shall become of age, and allows them six months, thereafter, in which to contest it.
    It is objected that we furnished no proof in support of the allegations of our bill, and that, in consequence, a decree against ■the infant defendants was improper. We submit, however, that such proof was unnecessary. Had we made it, the decree would have bound the infants no further than they are bound ■ by the decree we have taken. 3 Johns. Ch. R. 367; 4 Ibid. 302; 1 Am. Eq. Dig. tit. Infant, I, 61.
    In equity, this should be considered as a bill filed against a tenant, for years, in possession, and an infant remainder-man or reversioner. The tenant, who is the only party now to be affected by our proceedings, suffers judgment to go by default, and his is the only interest acted on by the decree, as that of the infant reversioner, by the very terms of the decree, is unaffected by it, and remains in statu quo, and can only be made subject to the operation of the decree by his neglect to contest it within six months after service upon him of a copy. It is, as to him, but a decree nisi.
    
   Mr. Justice Clayton

deli vered the opinion of the court.

The only question in this case relates tó a point of chancery practice.

There were several defendants, some of whom were infants. The bill was taken for confessed, as to the adult defendants, but the infants answered by guardian ad litem. There was no proof in the cause, and a decree was rendered in favor of the complainants, reserving time to the infants, after they came of age, to show cause against it.

This was erroneous, as to the infants; the pro confesso as to the others, could have no effect upon their rights. Taking a case for confessed in equity, entitles the complainant to a decree only against such party, not against the others. 3 Johns. Ch. 367; 10 Johns. 537; 4 Leigh, 579; 2 Atk. 21. And if the defendant, against whom no pro confesso is taken, disprove the bill, the whole will be dismissed.

Even a pro confesso against an infant will not authorize a decree against him, there must be proof. Mills v. Dennis, 3 Johns. Ch. 367. The reservation of a right to show cause against the decree, after the infant attains majority, does not cure the error. That right is a limited one, and seems to extend only to defects and errors in the decree itself; and it seems also to be barred by a sale under the decree. 3 Johns. Ch. as above. Though in this we give no authoritative opinion.

For this error the decree will be reversed. But this does not. extend to set aside the pro confesso as to the adults. The cause will stand as it did, when the decree was pronounced, and will proceed from that point, as if it had never been made, leaving it to' the court below to set aside the pro confesso or not, according to its legal discretion. See Gwin v. Harris, 1 S. & M. Ch. R. 528.

We regard the appeal in this cause as having been taken by the infants as well as the other parties.

Decree reversed.  