
    Wyatt, &c., vs. Mansfield’s Heirs.
    Case 43„
    Pet. Ess
    APPEAL FROM CALDWELL CIRCUIT.
    1. When a petition is filed for the sale of infants' real estate, it is necessary that they should have a statutory guardian, who shall answer, and also execute such a covenant as the statute requires, otherwise a sale will be void,
    2. It is not sufficient that the covenant be executed after the sale takes place.
    3. A pale of infants’ real estate ia void unless the roqui.-ites of the statutes, in regard to the appointment of commissioners io value the real and personal estate belonging to the infants, and ihe annual profits thereof, are complied with; without such report the circuit court has no jurisdiction to order a sale of real estate.
    [The facts of t'he case are set out in the opinion of the court.—Rep.]
    
      John Rodman, [or appellant—
    
      1. Several of the appellants and appellees also are infants, and the petition is brought for the sale of certain land and slaves of which the ancestor, James Mansfield, died possessed, without having made any will. No attorney was appointed for the non-resident infants or warning order taken. A part .of the non-residents appeared and answered; a part did not. A commissioner was appointed who madq a report, which'does not conform to the statute, and the court decreed a sale of the land and slaves he-fore one of the guardians of the infants had executed the bond required by the statute. ;
    
      2. James, Robert, and Ross Baker are infants, apd entitled to a share of the estate sold. Peter P. Baker-is their guardian. lie had given no bond when the property was sold, but executed a bond some two years afterwards. ,
    The court had no power to decree a sale of the estate until the requisite bond was given. (Rev. Sj,at. 592; Carpenter vs. Strother-, 16 B. Monroe, 290.)
    3. The report of the commissioner is defective in not reporting that he had valued all the estate, real and personal, belonging to the infants, and in failing to report the yearly value thereof.
    4. James and Jane Mansfield are described in .the petition as infants, and no statutory guardian has answered for them, nor was any guardian ad /item appointed lor them; they are only constructively served with process, being, as is alleged, non-resi- . dents.
    1. When a pe" tition Í8 filed for the sale of infants* real es tale, it is necessary that they should have a statutory guardian, who shall answer .and also bn Kane such a covenant as the statute i eqnires, otherwise a sale will be void.
    2. It is nofc sufficient- that the covenant be executed after the sale takes place*
    3. A sale of Infants’real estate is void unless tiie requisites of the statute, in regard to the appointment of commission e r s to value the real and personal estate belongingto the iutuuts, and the annual profits thereol, me complied with; -without such report the circuit court lias no jurisdiction to order a sale of .real .estate.
    
      A reversal is asked.
    Jan. 30, 1858.
   ' Judge Simpson

delivered the opinion of the court.

As the defendants, James Mansfield and Jane Mansfield, were proceeded against as non-resident infanta, it was irregular to render any judgment in ■the cause until a guardian ad litem had been appointed to defend for them. And -as the suit was brought to sell real estate in which they had an interest, it was necessary, in order that the sale might be valid as to them, that they should have had a statutory guardian, and that he should have appeared and answered, and also have executed such a cove-mint as the statute requires. The sale as to them is absolutely void, and their interest in the real estate did not pass to the purchaser.

Nor did the interest of the children of Nancy E. Baker, deceased, pass by the sale to the purchaser. No covenant was executed by their guardian, until after the sale was made. Now, Hie statute expressly prohibits the sale of infants re<\i estate unless such a covenant he executed, and declares that the sale shall be void. As therefore the sale was void when it was made, so far as their interest in, the real estate was concerned, it would not be made valid by the covenant which was subsequently executed by their guardian.

But there is a still more radical defect in the proceedings, inasmuch as it render's the sale of the land wholly void as to all the infants, and prevents the eale ami conveyance thereof from conferring any ti-lie whatever on the purchaser; to the extent of their interests.

By the Revised Statutes, (page 592,) it is expressly provided, that before a court shall have jurisdiction, to decree a sale of infants’ lands, three commission.ers must be appointed to report, and must report, on ©ath, to the court, the net value of the infants- real and personal estate, and the annual profits thereof. The commissioners were appointed in this case and made a report, but it is evident, from their report, that they only valued the estate which belonged to the infants, as beirs of James W. Mansfield, deceased. The statute requires them to value the whole estate that belongs to the infants; whether ■that has been done or not the report does not state, mor can we determine. They may have some estate derived from other sources, and the commissioners should have stated in their report that they had valued all the estate which belonged to them. Without such a report the court had no jurisdiction to order the salle, and lhe sale as to the interests of the infant heirs was absolutely void.

'Wherefore, the judgment is reversed, and cause remanded with directions to set aside the sale of the land, and for further proceedings consistent with this opinion.  