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1814, p. 128, 93, (2 R. S., 194, į 175,) this difficulty is removed. The provision will be afterwards noticed.

Petition neThe application must be by petition. A motion will not cessary. do.(1) See the form, Appendix, No. 307.

The petition is of course ex parte : an order is made, for the form of which, see Appendix, No. 308.

Notice is to be given to the guardian or next friend of the infant, and this is made part of the order.

The notice is generally by a summons from the master to attend. See Office, &c., Masters in Chancery, p. 141. et seq., for the proceedings before the master.

When the master's report is obtained, a petition must be presented to confirm it, and that the infant be directed to convey. Notice must be given to all who have appeared before the master, and objections, if any, may then be made. For the form of the order, see Appendix, No. 309.

As to the settlement of the conveyance, and its form, see Office, &c., Masters in Chancery, p. 145.

Several important alterations have been made in the English rules upon this subject, by the statute, 1 Wm. IV., cap. 60. The 6th section of that act is substantially a re-enactment of the statute of Ann, the clause, on the petition of any person interested, &c., being however omitted.

By the 15th section, every person, being in other respects within the meaning of the act, shall be, and be deemed to be, a trustee within the meaning of the act, notwithstanding he may have some beneficial interest or estate in the same subject, or may have some duty as trustee to perform; but in every such case, and in every case of a mortgagee, (not being a naked trustee,) it shall be in the discretion of the Lord Chancellor, or the court of chancery, if under the circumstances it shall seem necessary, to direct a bill to be filed to establish the right of the party seeking the conveyance or transfer, and not to make the order for such conveyance or transfer unless by the decree to be made in the cause, or until after such decree shall have been made.

The decisions which rendered this statute necessary, are stated, Office, &c., Masters in Chancery, p. 142.

(1) Evelyn v. Forster, 8 Vesey, 96. The jurisdiction, the Lord Chancellor says, was given to be exercised by a petition.

224

ENFORCEMENT OF CONTRACTS OF ANCESTOR. (Ch. 32.

In the matter of Windle, (2 Edw., 587,) the father of certain infants had purchased the premises, and had the conveyance made to his wife, he being an alien. Upon her death, the legal estate vested in her children, and upon a petition they were declared trustees, and he being naturalized, were directed to convey to him. The proceedings are stated in detail in the report, and will be found useful.

In this case, the vice-chancellor approved the form of the deed, as stated in the author's former work, viz. A. B., (the infant,) by C. D., the guardian ad litem.

It may be observed, that the case of such a reference, to ascertain whether the infant is a mortgagee within the act, could scarcely occur with us. This inquiry in England, is usually where a bill to redeem is brought, and the heir of the mortgagee is an infant. The legal estate being in him, a reconveyance is requisite; but in our state, the money would be paid to the personal representative, who would be ordered to satisfy the mortgage of record, and that would be sufficient.

SECTION IV.

ENFORCEMENT OF THE CONTRACTS OF ANCESTOR.

The court of chancery shall have power to decree, and compel a specific performance, by an infant heir, or other person, of any bargain, contract, or agreement made by any party. who may die before the performance thereof, on petition of the executors or administrators of the estate of the deceased, or of any person or persons interested in such bargain, contract, or agreement, and on hearing all parties concerned, and being satisfied that the specific performance of such bargain, contract, or agreement ought to be decreed or compelled.(1)

I believe this provision was first adopted in the year 1814.(2)

An English statute was passed upon this subject in July, 1830.(3) It differs from our act, in the important particular,

(1) 2 R. S., 194, § 175.
(3) 1 Wm. IV., cap. 60, § 16.

(2) Laws, 1814, p. 129, $ 3.

that there must be a decree for a specific performance, either before or after the death of the vendor of the land.

It will be observed, that a petition is the proper mode of applying to the court. See the form, Appendix, No. 310.

Upon this, an order of reference is usually made, although, if the case is very clear, and notice of presenting the petition has been given, the court may decide without such inquiry. For the form of the report, see Appendix, No. 311.

According to the decision in the case of Evelyn v. Forster, 8 Vesey, 96, before noticed, the report should be brought before the court on a petition to confirm it, and for an order to enforce the performance. For the form of the final order, see Appendix, No. 312.

CHAPTER 33.

DIVORCE.

SECTION 1.

DIVORCE ON THE GROUND OF NULLITY OF MARRIAGE.

The contract of marriage, as regulated by the common law and the law of England, is indissoluble even on the ground of adultery, except in the latter case, by an act of parliament. Nothing more can be procured than a separation from bed and board.(1) But it has long been provided by a statute of our state, that the marriage tie may be wholly dissolved for the cause of adultery.(2)

Before the Revised Statutes, it was decided in our court of chancery, that such a dissolution could not be obtained upon any other grounds which by the ecclesiastical laws would warrant it; that such law, though embodied as part of the English law, did not prevail here. But it was also held, that a marriage might be declared void upon grounds which would be sufficient to set aside a contract in the ordinary exercise of chancery power, such as from being entered into by a lunatic, or obtained through fraud.(3)

(1) Sciendum est igitur legitime contractum matrimonii dissolvi non posse, quippe a deo conjuncti,'ab homines separari non debere nec-valeat. Inst. Jur., Canon, Lib. 2, tit. 16. The form of marriage of the Episcopal Church, contains an injunction almost literally translated from this passage. This is in opposition to the law of each of the United States, unless understood with much qualification. For a view of this question, and the opinions of divines and legislators upon it, see Paynter, Law of Divorce, p. 169, &c.

(2) Laws of 30th March, 1787.
(3) Burtis v. Burtis, 1 Hopk., 563.

1

Our legislature, however, interposed at the revision in 1830, and adopted some of the leading doctrines of the ecclesiastical law upon this subject. A decree of the nullity of a marriage may now be obtained Nullity of mar

riage for nonupon the ground of nonage—of the existence of a former hus- age, &c. band or wife, with whom the marriage is in force; of idiocy, or lunacy at the time of the contract; of force or fraud in obtaining a consent, and for impotency.(1)

It is of importance to be observed, that in all these cases, except that of the existence of a former husband and wife, the marriage is void from the time of the decree of nullity being pronounced, not ab origine. In the case of a former marriage, it is void from the beginning, except where the husband or wife has been absent for the space of five successive years, without being known to the other to be living during that time; a marriage during the life-time of such absent party, shall only be void from the time of sentence of nullity being pronounced.(2)

Every male who shall have obtained the age of 14 years, and every female of 12 years, shall be capable in law of contracting marriage.(3)

The bill to annul the contract on the ground of nonage, may be brought by the parent or guardian entitled to the custody of such minor, or by the next friend of such minor.(4)

The bill cannot be brought if the party so under age has freely cohabited as husband or wife after attaining the age of consent,(5) nor can the marriage be annulled on the application of the party who was of lawful age at the date of the contract.(6)

It may be a question, whether the provision of the Revised Statutes, (2 R. S., 446,) directing the appointment of a next friend where an infant is plaintiff, applies to the present case.

(1) 2 R. S., 142, $ 20.

(2) 2 R. S., 139, § 3, 4, & 5. (3) The rule of the common law recognised by a decision in this state was as stated in the text. The revisors suggested an alteration, making the age of the male 17, and the female 14. Such was the provision of the statute as originally enacted. By the act of 1830, ch. 320, § 24, that section of the original act was repealed. The effect of this must be, I presume, to restore the former law; a most strange abandonment of what seems to me, but a slight step towards wise legislation. (4) 2 R. S., p. 142, § 21.

(5) Ibid.

(6) Ibid.

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