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Bank of the United States v. Ritchie, 33 U.S. 8 Pet. 128 128 (1834)

Bank of the United States v. Ritchie

33 U.S. (8 Pet.) 128


The Bank of the United States and others, "under the authority of the act of the Legislature" of Maryland, passed in the year 1785, entitled an act for enlarging the powers of the "High Court of Chancery," under which the real estates of persons descending to minors, and persons non compos mentis, were authorized to be sold for the debts of the ancestor, proceeded against the real estate of A. for debts due by him, and in 1826 the estate was sold by a decree of the Circuit Court of the District of Columbia, exercising chancery jurisdiction. Afterwards, in 1828, some of the infant heirs of A., by their next friend, filed a bill of review against the administrator of A., the purchaser of his real estate, and others, stating various errors in the original suit and in the decree of the court, and prayed that the same should be reversed. Held that a bill of review can be sustained in the case.

From the language of the fifth section of the act, some doubt was entertained whether the act conferred a personal power on the chancellor or was to be construed as an extension of the jurisdiction of the court. If the former, it was supposed that a bill of review would not lie to a decree made in execution of the power. On inquiry, however, the Court is satisfied that in Maryland, the act has been construed as an enlargement of jurisdiction, and that decrees for selling the lands of minors and lunatics in the cases prescribed by it have been treated by the court of appeals of that state as the exercise of other equity powers.

In all shits brought against infants, whom the law supposes to be incapable of understanding and managing their own affairs, the duty of watching over their interests devolves in a considerable degree upon the court. They defend by guardian, to be appointed by the court, who is usually the nearest relation not concerned in point of interest in the matter in question. It is not error, but it is calculated to awaken attention that in this case, though the infants, as the record shows, had parents living, a person not appearing from his name or shown on the record to be connected with them was appointed their guardian ad litem.

The answer of the infant defendants in the original proceeding is signed by their guardian, but not sworn to. It consents to the decree for which the bill prays, and without any other evidence, the court proceeds to decree a sale of their lands. This is entirely erroneous. The statute under which the court acted authorizes a sale of the real estate only where the personal estate shall be insufficient for the payment of debts, when the justice of the claims shall be fully established, and when, upon consideration of all circumstances, it shall appear to the chancellor to be just and proper that such debts should be paid by a sale of the real estate. Independent of these special requisitions of the act, it would be obviously the duty of the court, particularly in the case of infants, to be satisfied on these points.

Page 33 U. S. 129

The insufficiency of the personal estate of A.R. to pay his debts is stated in the answer of his administrator, but is not proved, and is admitted in that of the guardian of the infants, but his answer is not on oath, and if it was, the court ought to have been otherwise satisfied of the fact.

The justice of the claims made by the complainants in the original proceeding is not established otherwise than by the acknowledgment of the infant defendants in their answer that "according to the belief and knowledge of their guardian, they are, as alleged in said bill, respectively due." The court ought

not to have acted on this admission. The infants were incapable of making it, and the acknowledgment of the guardian, not on oath, was totally insufficient.

The court ought to have required satisfactory proof of the justice of the claims, and to have established such as were just before proceeding to sell the real estate.

There was error in the original proceedings in ordering the sale of the real estate of A.R. for the payment of his debts before the amount of the debts should be judicially ascertained by the report of an auditor.

The eighth section of the law which authorizes the sale of real estate descending to minors enacts

"That all sales made by the authority of the chancellor under this act, shall be notified to and confirmed by the chancellor before any conveyance of the property shall be made."

This provision is totally disregarded. The sale was never confirmed by the court, yet the conveyance has been made. It is a fatal error in the decree that it directs the conveyance to be made on the payment of the purchase money without directing that the sale shall first "be notified to, and approved by" the court.

The conveyances of the real estate, made under the original proceeding, were properly set aside by the decree of the court below. The relief might be very imperfect if, on the reversal of a decree, the party could under no circumstances be restored to the property which had been improperly and irregularly taken from him.

The appellees filed their bill of complaint in the circuit court in the nature of a bill of review against the appellants, in which they set forth that in the year 1825, the appellants filed their bill against the complainants and others, as heirs at law of Abner Ritchie deceased, under the Act of Assembly of Maryland of 1785, chap. 72, sec. 5, alleging themselves to be the creditors of said Abner Ritchie in the several sums of money mentioned in said bill; that John T. Ritchie, son of said Abner, and one of said defendants, had obtained letters of administration upon the estate of said Abner; that complainants had frequently applied to him for the payment of their debts, which he refused, saying that he had not assets of the said estate to pay them or any part thereof, and that said Abner

Page 33 U. S. 130

had died without leaving personal estate to discharge the debts due by him; that said Abner died possessed of real estate described in an exhibit filed therewith, and that the defendants are the heirs at law of the said Abner, and pray process, &c., against them.

The bill of review proceeds to aver that said process did accordingly issue, and that before said these complainants appeared to the same, an order was obtained by the solicitor for the then complainants appointing Thomas Turner guardian to appear and answer for them; that this order was obtained without their knowledge or approbation and without its having been made to appear that the said parties were infants and without its appearing, by the terms of the said order, that Turner was appointed guardian for these parties; that said Turner did, however, appear for them as their guardian and filed an answer for these complainants admitting the truth of all the allegations in the bill; that said bill is not on the oath of said pretended guardian, as is usual. They further state that John T. Ritchie, Sr., filed his answer to said bill and, alleging that he himself was a large creditor of deceased, suggested a reference of the various claims to an auditor. That in the year 1826, B. L. Lear, solicitor for said complainants, and T. Swann, also solicitor of said court, misled by some person or persons, entered into an agreement to set the cause for hearing, and did consent that a decree should pass, and which was passed by said court, decreeing that said real estate should be sold and that trustees should convey the same, and that these parties, on their arrival at age, should release to the purchasers all their title to the same. That said sale was accordingly made, and said T. Ritchie, Sr. became the purchaser, and hath received a conveyance.

The parties aver that Mr. Swann had no authority to appear for them or to enter into any consent or agreement on their behalf, or that any decree should be entered against them, and that said proceedings were had without their knowledge or assent, and have never been acquiesced in; that their friends and natural guardians were overlooked and unconsulted. That they are aggrieved by said decree, and ought not to be bound thereby -- that they ought not to convey their estate as by the decree is directed, that said decree is erroneous, and ought of be reversed -- and assign several errors:

Page 33 U. S. 131

1. There is no allegation in the bill or evidence filed in the case that Abner Ritchie died without leaving personal estate sufficient to pay his debts.

2. That there is no allegation or evidence that his real estate descended to a minor.

3. That said decree was made without any legal or sufficient answer by these complainants, and without the several matters contained in the bill being taken pro confesso against them.

4. That there is neither allegation nor proof that either of said defendants was a minor and incapable of answering without a guardian.

5. That the court appointed a guardian ad litem without naming the infant defendants or causing them to be brought into court to have a guardian appointed, and without any averment or proof that either of them was a minor.

6. That the order appointing a guardian is vague, uncertain, and void.

7. That the answer of Turner professing to be guardian, &c., not being under oath, is insufficient and void.

8. That said decree purports to be by consent, whereas it appears that these complainants never appeared to said suit in person or by guardian, and therefore never could have assented, and cannot, as minors, be bound by the consent of an attorney.

9. That there is not sufficient matter alleged in the bill to sustain the decree if the parties had been competent to assert and had asserted.

10. Because the decree, contrary to right and equity and the uniform rule and practice of the court, directs the trustee to convey, without a ratification of his sale.

11. Because the decree is an absolute one, without giving complainants a day after they shall arrive at age to show cause against the decree.

The bill then avers the death of Henry Carbery, one of the complainants to the first bill, about three years before the filing of said bill, and prays a review and reversal, &c.

Several of the defendants appeared, and disclaiming any interest, &c., assent to the review and reversal

John T. Ritchie answers, averring the correctness of the proceeding, and prays a confirmation of what has been done.

Page 33 U. S. 132

The Bank of the United States and Union Bank of Georgetown, answering, admit that the original was filed as stated and require proof of the further allegations of complainants; they aver the sufficiency and correctness of the former proceedings, and deny that there is any sufficient cause for a review &c.

The circuit court decreed a reversal of the original decree and annulled all the proceedings had under it, declaring the parties to be restored to their original rights.

The proceedings in the former case, constitute the only evidence in the case of the review.

For the appellants, it will be contended

1. That no decree can be set aside or reversed on a bill of review, for any reason not appearing on the face of the decree itself, whereas most of the objections here urged, were dehors the decree.

2. Because such of the reasons as are alleged to appear on the face of the decree itself, are wholly insufficient.

3. Because a bill of review will lie only where the original decree, of which complaint is made, has been fully executed by the party complainant, whereas the contrary is apparent on the face of the bill of review.

4. Because the decree of reversal transcends the power of the court, and extends further than the court had jurisdiction to decree.

5. Because it is in other respects inequitable and illegal.

Page 33 U. S. 140

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