Lien und costs. sum of $37 each, and to the infant defendant D, the sum of $105, and to the infant defendant E, the sum of $105. No allowance can be made for counsel fees.(1) But the guardian ad litem may, in a special case, be allowed counsel fees, payable out of the infant's property.(2) By the 74th section of the act, (2 R. S., 328,) it is provided execution for that when final judgment for partition shall be rendered, the court shall also adjudge each of the parties concerned therein, other than the petitioners, to pay to such petitioners, a proportion of the costs and charges of the proceedings, to be ascertained by the court according to the respective rights of the parties, and the proportion of such costs assessed upon the unknown owners, to be chargeable on the part remaining undivided; and upon such judgment execution may issue as in personal actions, and may be levied on the property of the parties respectively charged with such costs, and upon any share or part of the premises, allotted on such division to any owner unknown or not named, and upon every portion remaining undivided, for the proportion adjudged to be paid by such owners, or chargeable to the part remaining undivided. And a sale of such premises thereupon shall be as valid as if such unknown owner had been named in the proceedings and in such execution. It is usual to insert a provision to the effect of this statute in the final decree. Appendix, No. 292. (1) Whittemore v. Whittemore, in Chancery, September 5, 1837. Upon an application for an allowance to counsel beyond the fees taxable under the fee bill, on the ground of extra trouble about the suit, the chancellor said, that the court had no power to authorize the taxation in such a case, of any greater amount for council fees than the allowance fixed by the legislature in the fee bill. (2) Clason v. Clason, see the decree, Appendix, No. 292. CHAPTER 32. INFANTS. SECTION I. SALE OF REAL ESTATE OF INFANTS. THE sale of real estate in which infants are concerned is a subject of much importance, and may be obtained under our statutory provisions in several ways. So jealous and strict were the rules of the common law upon this subject, that to this day there is no mode of procuring such a sale in England. Even upon the debt of the ancestor for which lands may be made liable, the parol might have demurred until the act of William IV., c. 47. In partition, the conveyances (of the infant at least,) is respited until he comes of age; and upon a mortgage foreclosure, it was a new and bold, though wise step of Lord Eldon, to order a sale upon ascertaining that the benefit of the infant would be promoted. I have elsewhere observed, that upon foreclosures, it has been the invariable course of our court, for a long period, to sell the land even before there was a statute sanctioning it; and this whether there were infants in the case or not. Office and Duties, &c., 209. The only approach in England to our own system is in the statute 1 William IV., cap. 65, 47, authorizing the court of chancery to grant leases of infants' lands, when it shall appear to be for the benefit of the estate. Sugden's Acts, by Jemmett, p. 135. In the year 1814, an act of our legislature was passed, (Laws 37 session, cap. 108,) authorizing a sale of infants' estate for their support and education, and in 1815, an additional act 1 In what cases be ordered. authorizing such sale where the interest of the infant required it, (session 38, cap. 106.) By the present statute, (2 R. S., p. 194,) any infant seized a sale, &c. will of any real estate, or entitled to any term of years in any lands, may, by his next friend, or by his guardian, apply to the court of chancery for the sale or disposition of his property in the manner thereafter directed. And the language of the act as to the cases in which the court may direct such a sale is very broad. Whenever it shall appear satisfactorily that a disposition of any part of the real estate of an infant, or of his interest in any term of years is necessary and proper, either for the support and maintenance of such infant, or for his education; or that the interest of such infant requires, or will be substantially promoted by such disposition on account of any part of his said property being exposed to waste and dilapidation, or on account of its being wholly unproductive, or for any other peculiar reasons or circumstances, the court may order the letting for a term of years, the sale or other disposition of such real estate or interest, to be made by such guardian or guardians so appointed, in such manner, and with such restrictions as shall be deemed expedient.(1) No real estate or term of years can, however, be sold or disposed of in any manner against the provisions of any last will, or of any conveyance by which such estate or term was devised or granted to such infant.(2) Under the terms sale or disposition in the act, applications to mortgage are often entertained by the court. The same construction has long been given to the statute authorizing the sale of lands belonging to religious corporations. The question has frequently been suggested by counsel, whether the act extended to a case where the infant had only an estate in remainder. I have known several cases before vice-chancellor McCoun, in which a sale has been ordered in such a case,(3) the parties entitled to the life estate having also contracted to sell at the same time. The point depends upon the meaning of the term seised in the 176th section. Under the former statute of descents, it is undoubted law that there was no such seizin in a remainder or reversion dur (1) 2 R. S., 194, § 181. (2) Ibid. § 182. (3) In re Loomer, January, 1839. In re Moore, February, 1839. ing the continuance of the particular estate, as to constitute the remainderman a new stock; he dying while the particular estate was undetermined. The seizin was in the actual possessor.(1) Seizin, says Lord Coke, imports the having possession of an estate of freehold or inheritance in lands or tenements. Litt. 153. Co. So by the old law, there could not be a seizin of a rent to support an assise without an actual taking of it, or a part of it as a symbol. An attornment by the tenant to the purchaser of the rent was insufficient, though if a penny was given by him by way of seizin, it would do; or, if he was put in seizin after recovery, by a branch or turf of the land delivered to him, it was enough. Viner's Ab., title Seizin, Vol. 19, p. 306. So Jacob's Law Dictionary, title Seizin, "It signifies in the common law possession." Yet it is said (Fitzh. Nat. Br., 179, H.) that there shall be an assise to the successors of a parson, upon the seizin of the parson by the hands, &c. And in Wrottesley v. Adams, 1 Plowden's Rep., 191, an exception was taken to the count because it ran that after the election of each of the priors, it was said, "by force whereof he was seised of the reversion," whereas it ought to have been said, "in his demesne of fee." For he should have an assise if the termor was ejected, and in such things whereof a man shall have an assise, he shall say in his count countant "that he was seised in his demesne as of fee." But if the reversion had been dependent on an estate for life, he should say ut supra, but here he ought to say, "in his demesne as of fee." To which it was answered by the court, that true it is he might have said so, and it would have been good, and yet the other form of pleading is good also; for which reason a man may say of a reversion dependent upon an estate for years, as well as dependent upon an estate for life, that he was seised as of fee." See also Dyer's Rep. 256, b. (257 a.) and Year Books 2 Henry VI. 7-45 ed., 3. 26. The next friend, or guardian of the infants may apply for the sale. The statute directs ( 176,) that the infant may by his next friend, or guardian, apply to the court for the sale or (1) 3 Johns. Cas., 214. 3 Form of application. disposition of the estate. By the 158th rule, the general guardian of the infant, if he has any, and if there is none, the infant himself, if of the age of 14 years or upwards, may apply. And if the infant is under the age of 14 years, some relative or friend may make the application. In a case in which the infant was over fourteen, but resided in another state, the petition was presented by and in the name of a next friend. And the case was brought before the chancellor, on the supposition that the vice-chancellor could not, in a special instance, deviate from a rule of court. The chancellor made the order.(1) Perhaps under the 176th section, the application ought to be always, by a next friend or guardian, whether the infant is over or under 14 years. If there is no general guardian, it should be so stated in the petition.(2) The application must be made by a petition.(3) It must state the age and residence of the infant, the situation and value of his real and personal estate, the situation, value and annual income of the real estate proposed to be sold, and the particular reasons which render the sale of the premises necessary or proper; and must pray that a guardian be appointed to sell the same. It must also state the name and residence of the person proposed as such guardian, the relationship, if any, he bears to the infant, and the security proposed to be given.(4) See the form, Appendix, No. 293. It must be sworn to.(5) Preliminary The petition, before it is brought before the court, shall be presented to the master who is nearest to the residence of the infant, if a resident of this state; or if a non-resident, to any injunction or taxing master.(6) certificate of a master. (1) June ―, 1835. Petition, M. Hoffman, next friend of C. H. and others, infants. The power of the chancellor to pursue a different practice in any particular case from that prescribed in a general order of court, is recognised in Doras v. Brougham, 6 Car. & Payne, 248; Eng. Com. L. Rep., 390. (2) In re Lansing, 3 Paige, 266. (3) Rule 158. (5) In re Lansing, 3 Paige, 265. (6) Rule 159. It is supposed by some masters in New-York, that the master, whose office, or whose house is nearest the abode of the infant, must be applied to. The rule is to enable the court to have the benefit of the personal knowledge of the master, by which he can better direct his in |
