
    The Case of G. C. Brown.
    The circuit or chancery court of any county in which the real estate of any minor lies, may, on the application of such minor, order the sale of such real estate, where it appears to he manifestly the interest of such minor, that it should be sold. This is authorized by virtue of the act of 1827, ch. 54.
    This is a petition which was filed in the chancery court at Nashville, by a minor, George C. Brown, by his next friend, George W. Campbell, jr., praying the sale of a tract of land lying in Davidson county, containing about two hundred acres. The petition having set forth, that the land was conveyed by will of petitioner’s father to petitioner, proceeds as follows to set forth the ground on which said sale is prayed for, to wit:
    “That at the time of said conveyance, the said tract of land had been improved by the creation of a large family residence and ordinary out-houses, and that the principal value of said tract then consisted, and at this time consists of its suitableness for a permanent family residence to persons in easy circumstances of life, that the land is too diminished in quantity to make the place valuable by its produce, and that the improvements are such as do not suit persons in the ordinary habit of renting. Your petitioner states, that although the said tract of land and premises have been rented for three years, for the sum of $350 per annum, yet, the same have produced no actual revenue to your petitioner, the whole of said sums having been exhausted in the necessary improvements and repairs incident to a place of such kind. Your petitioner is advised, that the annual rent which may be obtained for said premises, will continue, as heretofore, to be consumed in a great degree if not wholly in the same way. He is further ordered that the improvements are such as to be greatly deteriorated by ■ the usage ordinarily experienced by rented premises". Your petitioner is now in the sixth year of his age? and according to tire present prospects, and in all human probably, by the time he arrives at maturity, if he continues to hold the land and premises as aforesaid, will find himself in possession of a place much diminished in value, and without any addition to his revenue from the source of parental bounty. Your petitioner is advised that the present value of the tract and premises as aforesaid, at legal rates of interest, according to the course of the law regulating the property of minors, would in that period be more than doubled. Yoúr petitioner would further represent to your honor that his father after the making of said deed of conveyance departed this life, leaving two other infant children besides your petitioner, who are still living, that the property left by his said father exclusive of the tract and premises aforesaid to be divided among his said three children is now valued at thirty thousand dollars, certainly not over thirty-five thousand dollars, and that if, as is probable, your petioner in order to share in said property, must bring into contribution the tract and prem ises so conveyed to him by (leed as aforesaid, as an advancement, your petitioner would not be entitled to share in said property. The present rent of said land and premises would be insufficient to the maintainance of your petitioner, even if it should not be necessary to apply any of it to the improvements and necessary repairs of said place, and certainly would be wholly inadequate, if reasonable allowance be made for such repairs, more particularly as your petitioner shall advance in years. Your petitioner would further show your honor that' the land and premises are worth at this time, between sixteen thousand five hundred dollars and eighteen thousand dollars.”
    The chancellor (Cahal) referred the petition to the clerk and master, directing him to hear testimony, and report to him whether it was for the interest of said minor that the land should be sold. The clerk reported as follows:
    “In pursuance of an interlocutory order made in this cause at the present term of this court, I have taken proof as to the material statements in the petition, tfind that the tract of land, prayed to be sold consists of about two hundred acres, with a large family residence and customary out-houses thereon, that the, land is not sufficient to yield a large revenue from its produce, and that the place is therefore chiefly -Valuable as a permanent family residence to persons in easy circumstances. I further find, that the improvements are not of a kind suited to renting, and are very apt to become deteriorated by the usage to which rented places are usually subjected. 1 further find, that $400 would be a high average rent, much of which would be consumed in the necessary repairs incident to such a place; that the net rent would by no means equal the ordinary legal interest, in the cash value of the premises, and would be wholly inadequate to the maintenance and education of the infant petitioner, particularly as he advances in years. I further find, and so report, that it is manifestly for the advantage of said petitioner, that said land should be sold, according to the prayer of his petition. Sixteen thousand five hundred dollars cash valuation should be the minimum price.”
    The chancellor, on the coming in of the report, authorized and directed the clerk and master to sell the said land at public or private sale, on terms most advantageous to the minor; subject the rejection or confirmation by the court. The clerk and master sold the land to Joseph Vaulx, for the sum of $16,500, four thousand in cash, and bond with security for the balance, payable twelve months after date, with liberty to renew the bond annually for six years, provided the interest was paid annually. ' The court affirmed this sale, and directed the clerk to receive the money, and to hold the notes, subject to the further order of the court, or at the option of the general guardian to hand the same over to him upon his giving bond and security in double the amount, payable to the clerk and master; conditioned, for the faithful performance of his duties as guardian in relation to said fund and its management, subject to the order of the court.
    A transcript of the record in this case was filed in the supreme court, and its judgment on the same demanded.
    
      W. F. Cooper, for petitioner.
    This records presents the naked question, whether the court of chancery in this state, has the power to decree the sale of the real estate of an infant, where such sale is shown to be manifestly for his benefit, and necessary for his support, maintenance and education.
    1. In favor of the existence of the power the following authorities are referred to. 2 Kent’s Com. 230; 2 Story’s Eq. Jur. sect. 1357; 1 Mad. ch. 339; 1 Fonbl. Eq. B. 1, ch. 11, s. 5 n. f. .and the'note of the American edition; Hedges vs. Riker, 5 Johns, Ch. Rep. 163; Huger vs. Huger, 3 Desau. Rep. 18; Sta-pleton vs. Lang staffe, lb. 22-24; Matter of Mason, 1 Hopk. Ch. Rep. 122; Mills vs. Dennis, 3 Johns. Ch. Rep. 367-370; Matter of Salisbury, lb. 347.
    2-. It seems now completely established in England, that the chancery court has not the jurisdiction to interfere with the inheritance of an infant — where the legal title is in the infant. Taylor vs. Phillips, 2 Ves. 23; Russel vs. Russel, 1 Molloy’s Rep. 525; Calvert vs. Godfrey, 6 Beav. 97. But has the power of interference in cases of election, or where the legal title is in a trustee. Ib. and Bingham vs. Lord Clanmorris, 2 Molloy’s Rep. 393, and notes. It is not easy to see why the reasons which sustain the power in the latter cases do not apply to the former.
    3. The jurisdiction is admitted in England in regard to the personalty and denied as to the realty — -but the reason for the restriction — that the interference with the inheritance would be an assumption of legislative authority — is not satisfactory. The power was exercised in Cecil vs. Salisbury, 2 Vern. 224,' and this case was expressly referred to and followed by chancellor Kent in Hedges vs. Riker, supra.
    4. Any difficulty in vesting title has been done away with in this state by the act of 1801, ch, 6, s. 48. And the jurisdiction has certainly been repeatedly exercised by our courts.
    5. It is further insisted that the jurisdiction may be sustained under the provisions of the act of 1827, c. 54. That statute provides for two class of cases — the one where 'sale must be made for purposes of partition — the other where manifestly for the advantage of the infant.
    6. It is to be noted, that the English decisions only go to the extent of denying the power to sell merely on the ground that it would be to the benefit of the infant. It seems no where held, that, in a case of absolute necessity, where the sale is shown to be necessai-y for the maintenance and education of the minor, the authority could not be exercised. On the contrary, this would seem to follow from the admitted doctrine— that the court has the power to break into the capital of infant’s estate where it becomes necéssary for the purposes mentioned. The proof shows this to be a case of the character spoken of.
    
      J. M. Lea, contra.
    
    The complainant is an infant, and by his guardian, filed a petition in the chancery court nt Nashville, to sell a tract of land, which was given to him by his father in his life time. The petition was referred to the clerk and master, who reported that it would be manifestly to the advantage of the petitioner to sell said tract of land, which report was confirmed by the chancellor and a sale ordered. Yaulx became the purchaser and has refused to complete his contract, being advised that a chancery court has no authority to dispose of a minor’s real estate.
    There is no act of assembly expressly giving such power to the chancery court. The question then is, can the power be gathered or inferred from the general jurisdiction which said court possesses over the persons and property of infants?
    Only one authority can be found in the books for the exercise of such a power. 2 Yernon 224, which case has been overruled in 1 Molloy 525, notwithstanding the master reported in this latter case that the lease or sale would be for the benefit of the infant. In support of said authority, denying such power to the chancery court, see 1 Ves. sr. 229, 2 Ves. sr. 23; 3 Atk. 613.
    Some of the elementary writers use the expression, that a court of chancery may change the estate of an infant from real to personal or personal to real property, if deemed beneficial for the infant, but these general or sweeping declarations are supported by no respectable authorities. Such an expression occurs in 2 J. C. R. 367, but the point was not necessary for the decision of the cause, and, moreover, there is in New York a statute conferring upon the chancery court power to sell the land of an infant. • 2 Kent, 228. So is there a statute in Ohio, Kentucky, Maryland, North Carolina, and perhaps, bther states, and chancellor Kent says, it is the general statute law throughout the United States that the lands of infants may be sold when their interest requires it in the opinion of the court having jurisdiction of the subject. 2 Kent. 230. This general passage of statutes in states where chancery courts have the ordinary jurisdiction argues strongly that the power did not before exist.
    The heir of the infant may be prejudiced by a conversion of his land into personalty, and though it is hard to tell why he ought to have any rights, the court always order that the de-scendible or distributable quality of the estate shall continue the same as before conversion, and such an order should have been made in this case.
    It is true chancellor Kent again says, in 5 John. 0. R. 167, it Is understood to be clearly stated that the court may change the estate of infants, and the case from Vernon is cited as an authority. This remark was extrajudicial, the court deciding that the executor had the power to sell or lease the land by the terms of the will without any application to the court. Observations made by judges not necessary for the decision of the cause are to be received with allowance, for as Mr. Justice Abbott says, “we all know that they are constantly thrown out by judges without that consideration and care which belong to the point in judgment, and are rather to be considered as illustrations than as authority in law.”
   Turley, J.

delivered the opinion of the court.

We had examined this case upon authority, with the view of determining it under the general jurisdiction of a court of chancery over the persons and estates of minors; and its power in proper cases, to convert their estates, by changing realty into personalty, and personalty into realty, without regard to statutory provisions thereon; and were prepared, though not without some difficulty, to assert such jurisdiction; but upon a careful examination of the statute of 1827, ch. 54, we are well satisfied that this jurisdiction is given by it, if it did not exist before, and that we are freed from the necessity of look-, ing further for authority to' support the decree of the chancellor.

This statute provides in the 1st section, “that when the heirs or legal representatives of any deceased person shall inherit any real estate, and it may be of such a description, that it would be manifestly for the advantage of the heirs, or legal representatives of such deceased person, that the same be sold; it shall and may be lawful for any person or persons entitled to any part of such estate, to file his bill in the circuit or chancery court of the county or district where such lands may be situated, and upon satisfactory proof, that it would be manifestly for the interest of such heirs or representatives, that the same should be sold, said court may proceed to decree, that the same be sold, upon such terms and conditions as may seem most for the interest of the parties.”

By the 3d section it is provided, “that when any of the persons, whose lands may be sold under the provisions of this act, are minors, under the age of twenty-one years, it shall be the duty of the court decreeing such sale, to direct the manner in which the funds arising therefrom, belonging to such minor, shall be appropriated; and if such court should deem it expedient, said court may direct that said monies be laid out in the purchase of other lands for said minors.”

Now this statute obviously contemplates a, conversion of lands belonging to minors, by a decree of a court of chancery, when it shall be manifestly for their advantage that it 'shall be done. It is true the statute makes provision by its express terms for cases in which there are more than one heir or representative, by using the word heirs and representatives, the plural instead of the singular; but surely it will not be thought, that if such power is given to a court of chancery, when there are two or more minor heirs or representatives, that it is not given where there is but one; if this conversion was with the view to a division, the use of such words would not imply a like power when there could be no division; but a sale for the purpose of making a division is provided for by the same statute, and the conversion' now spoken of is when it may be for the advantage of the heirs, that it may be made.' Surely it is equally proper that this power should exist where there is but one heir, as well as where there are more, if it be for his advantage that the conversion should be made, and we are satisfied that the existence of such a power in such cases is necessarily implied from the statute. If this were not so, such a degree of formality in drawing statutes would be required, as to become difficult and perplexing. In this very statute, if the word heir or representative had been used in the singular, and not the words heirs or representatives, the plural, it could perhaps have been urged, with greater plausibility, that the power to make the conversion was not given in cases where there were heirs or representatives; and to obvi-ateRfie difficulty, if it be allowed to exist, the statute should have been drawn so as to read “for the advantage of any heir or representative, when there is but one, or heirs or representatives, if there is more than one.” But we are satisfied that there is no difficulty in the construction of this statute, and that it covers the case of an heir or representative, as well as the case of heirs and representatives.

The proof in this case shows very satisfactorily, that it is for the advantage of the minor petitioner, George Campbell Brown, that the tract of land specified in the petition be converted into money, and we think that the chancellor was authorized under the statute to order the sale.

We, therefore, affirm his decree, and recommit the case to the chancery court, where the sale will, be perfected, and such steps taken as may be deemed meet and proper to secure the proceeds thereof to the minor.  