Rogers v. Dill — 6 Hill & Den. 415

Majority

p. 415

Rogers vs. Dill.

Headnote

The power of the court of chancery to order the sale of real estate belonging to an infant is derived entirely from the statute.

A sale of real estate devised to an infant, if ordered by the court of chancery contrary to the provisions of the devise, is utterly void, and passes no title to the purchaser.

Ejectment, tried at the Cayuga circuit in August, 1843, before Moseley, C. Judge. The action was brought to recover an undivided share of a piece of land which the plaintiff claimed as devisee under the will of his father, Neri Rogers. The will, after devising the use of one-third of all the testator’s real and personal estate to his wife, during her natural life, in lieu of dower, proceeded as follows: “ I give and bequeath to my two sons, Joshua and William [the plaintiff,] their heirs and assigns forever, three-eighths of all my estate, real and personal, subject to the right of my wife as within mentioned. I give and bequeath to my four daughters, Margaret Ann, Susannah, Lucinda and Charity, their heirs and assigns forever, the remaining five-eighths of all my estate, real and personal, subject as aforesaid to the right of my wife. The three-eighths above given to my two sons are to be divided equally between them, and the five-eighths above given to my four daughters are to be divided in like manner between them. It is my will and desire that no division of my property be made amongst my children until my son William shall arrive to the age of twenty-one years, so that it may furnish a home for my wife and children until that time, where all of them shall he entitled to live. And in case of the death of my son William before he comes to the age of twenty-one years, then it is my will that a division

p. 416

of the property shall not be made until after the 22d of April, 1837, on which day he will be, if he lives, twenty-one years of age.”

The defence was, that in February, 1833, the widow of Neri Rogers, as natural guardian of the plaintiff and three of the daughters, all of whom were minors, made application to the vice chancellor of the seventh circuit for an order authorizing the sale of the real estate owned by them, including the land in question, with a view to their support and maintenance; that an order of sale was made, under which a deed was executed to one Phelps; and that Phelps afterwards conveyed to the defendant.

The chancery proceedings were regular in point of form, but the plaintiff objected that the sale was void as having been made contrary to the will of Neri Rogers, and that the purchaser acquired no title. The circuit judge sustained the objection, and directed a verdict for the plaintiff. The defendant' excepted, and now moved for a new trial on a bill of exceptions.

W. H. Seward, for the defendant.

W. Hunt, for the plaintiff.

The court of chancery has no inherent original jurisdiction to direct the sale of the real estate of an infant. (Taylor v. Phillips, 2 Ves. 23; Russel v. Russel, 1 Molloy, 525; In the matter of-a minor, id. 528; Macpherson On Inf. 311, 312.) In Taylor v. Phillips, Lord Ch. Hardwicke observed: “ There is no distance of this court’s binding the inheritance of an infant by any discretionary act of the court. As to personal things, as in the composition of debts, it has been done; but never as to the inheritance; for that would be taking on the court a legislative authority, doing that which is properly the subject of a private bill.” And in the late case of Mussel v. Mussel, Lord Chancellor Hart said: “I have no authority to bind an infant’s legal real estate. That was decided long ago by Lord Hardwicke in Taylor v. Phil

p. 417

lips. The chancellor has never since attempted to deal with the legal inheritance of infants, without the aid of an act of parliament.”

The jurisdiction of chancery, therefore, in cases of this kind, rests altogether upon the statute. Independently of an authority derived from the legislature, that court has no right to entertain the question or direct a sale.

The first act in this state conferring the authority, was passed on the 9th of April, 1814, (Sess. L. of 1814, p. 128,) and contained no qualification except that the chancellor should be satisfied the sale was “ necessary and proper for the maintenance or education” of the infant. The next act was passed on the 24th of March, 1815. (Sess. L. of 1815, p. 103.) This enlarged the power previously conferred, by authorizing a sale whenever it should satisfactorily appear to the chancellor that “ the interest of the infant” would be promoted thereby; but it provided “ that nothing contained in the act should authorize the sale or disposition of any lands or term against the provisions of any last will or conveyance.” (Id. § 3.)

These acts were embodied in the revised statutes, and the proviso in the act of 1815 made applicable to the whole of the authority conferred: so that a sale cannot now be ordered in any case contrary to the will or- conveyance by which the infant acquires his title. ( 2 R. 195 , §1175, 6.) Such cases are expressly excepted from the grant of power; and the vice chancellor was as destitute of jurisdiction in the present instance, as he would have been had no statute ever existed. His order authorizing the sale was therefore utterly void, and no title passed by the deed given under it.

That the testator in this case forbid any sale or disposition of the real estate until the year 1837, the period when the plaintiff became of age, is too apparent to call for observation.

For these reasons I think the verdict is right, and that a new trial should not be granted.

New trial denied.