Loyd v. Malone (23 Ill. 43, 1859)

Breese, J.

The scope of the bill in this case, is, to impeach and set aside an order of the Circuit Court of Hamilton county, directing the partition and sale of certain lands, the property of the complainants, who are infants.

The bill charges that the application for the sale of the lands, and all the proceedings anterior thereto, by the guardian, were collusive and designed to injure the infants, and to deprive them of their inheritance, and that no necessity existed for converting their land into money for their support and education, and that the guardian was actuated, in procuring the order of sale and selling the land, by improper motives to injure them.

On the argument we had doubt, and much of it was directed to this point, if an original bill could be filed like this, attacking the order of partition and sale, and a decree had, to set it aside. We have examined the question fully, and are well satisfied the bill can be maintained. In the case of Richmond and Wife v. Tayleur, 1 Peere Williams, 734, Lord Chancellor Macclesfield held, that where an infant conceives himself aggrieved by a decree, he is not under a necessity to stay till he becomes of age before he seeks redress, but may apply for that purpose as soon as he thinks fit; neither is he bound to proceed by way of rehearing or bill of review, but may impeach the former decree by an original bill, in which it will be enough for him to say the decree was obtained by fraud and collusion, or that no day was given him to show cause against it; and Mr. Cottingham, his Lordship’s secretary, acquainted the court that Mr. Vernon, in case of an érroneous decree against an infant, used always to advise the bringing of an original bill to set it aside, but in such bill to allege specially the errors in the former decree.

To the same effect is the case of Loyd v. Munsell, 2 ib. 73, and Sheldon v. Fortescue, 3 ib. 110, although these cases allowed it on the ground of fraud. So in Robinson v. Robinson, 2 Vesey, 232, Lord Chancellor Hardwicke, on a bill of revivor by the present plaintiff to revive the former decree, and have the benefit thereof, said, they could not controvert the decree : that there have been cases of bills in nature of revivor, to carry on a former decree, when the court sometimes, though but seldom, have said, the defendant may dispute that decree, but never that the plaintiff might. The decree has determined the question, whether it was then debated or not: and the court was thereby bound, though the plaintiff being an infant, was not. The cause therefore stood over, with liberty to the plaintiff to bring an original bill, or take such method to bring his rights in question as he shall be advised.

So in Mitford’s Pleadings, 113, it is said, where an Improper decree has been made against an infant, without actual fraud, it ought to 'be impeached by original bill.

In New York (Davone v. Fanning, 4 Johnson’s Ch. 199, and Murray v. Murray, 5 ib. 60,) and in Kentucky, (Williams v. Fowler, 2 J. J. Marshal, 405, and Edmonson v. Moseby’s Heirs, 4 ib. 497,) the right to file an original bill, is placed on the ground of fraud in the original decree. So in Ohio, in the case of Mossie v. Matthew’s Ex’rs and Wallace, 12 Ohio, 351.

We are inclined to go to the extent of the rulings of the English courts, and not confine the right to cases where fraud has intervened to obtain a decree against infants. The rule in Richmond v. Tayleur, 1 P. Williams, 734, and recognized by Mitford, is a just rule, and we cannot anticipate any evils in its application, in this State, to cases as they may arise. The interests of infants are the peculiar care of courts, and if their rights have been outraged and disregarded by an unfaithful guardian, the courts should not be slow to apply a remedy.

The record in this case shows an application, under sec. 31, ch. 34, (Scates’ Comp. 156), by William L. Malone, as guardian of the infant heirs at law of one Sebron Sneed, deceased, the oldest of whom was not more than ten years of age, to the Circuit Court of Hamilton county, at the October term, 1854, for the appointment of commissioners, to assign and set off to Sebra Sneed, now Sebra Loyd, one of the complainants, her dower in an eighty acre tract of land, of which her husband died seized. This was the sole object of the petition, and no defense being made, William C. Davis, W. L. Lasater and Chester Carpenter, were appointed commissioners, not only to set off the widow’s dower, but to make partition of the land, which had not been prayed for.

At the May term, 1855, Chester Carpenter and one Joseph Upton, styling themselves commissioners, reported, that “ they find the lands described in said petition for dower are not susceptible of partition without material injury to those interested in the same.”

Upon the coming in of this report, the guardian, Malone, presented a petition to the court, representing that his wards were of tender years, and that he had applied the personal estate to their support and education, and prayed for an order to sell the land for their further support and education. Due notice of his intention to present this petition was given in a public newspaper printed in the county of Franklin.

Without proof of any kind whatever, the court granted the prayer of the petition, a sale ensued, and the infants were divested of their inheritance.

It may be well to observe here, that the land, thus sold, was the homestead of the deceased Sneed, and his family, a farm of eighty acres, well improved, and amply sufficient, from the rents, to yield a yearly income of one hundred dollars at least. The personal property of the deceased, with a sum contributed by the widow, paid the debts of the intestate.

The original bill attacking this decree, is framed on the advice of Mr. Vernon, as given in the case of 1 Peere Williams, before referred to, alleging specially the errors in the decree assigning dower, and ordering the sale of the land for the support and education of the infants.

The statute in relation to dower provides, in the 17th section, (Scates’ Comp. 153), that “it shall be the duty of the heir at law or other person having the real estate of freehold or inheritance in any lands or estate of which the widow is entitled to dower, to lay off and assign such dower as soon as practicable after the death of the husband of such widow.”

If the heir, (by sec. 18), does not, within one month next after the death of the husband, assign and set over to the widow, to her satisfaction, her dower, then she may sue for and recover the same, by filing her petition in chancery (sec. 19) in the Circuit Court, against the heirs, and proceed as therein directed. By section 24, when the court adjudges that the widow shall recover dower, it shall be so entered of record, together with a description of the land out of which she is to be endowed; and the court shall thereupon appoint three commissioners, not related to the parties, and disinterested, each of whom shall take an oath fairly and impartially to allot and set off to the widow her dower out of the lands and tenements described in the order of the court for that purpose, if the same can be done consistent with the interests of the estate.

Section 25 requires them to set off the dower by metes and bounds, according to quality and quantity of all the lands described in the order of court, with this important proviso: “ Provided, The widow shall have the homestead or dwelling house of the husband if she desire it.” The commissioners are to make return in writing, under their hands and seals, to the court, which, if approved, shall vest in her a life estate in the lands set off to her.

By section 28, if the commissioners aforesaid shall report that the land is not susceptible of a division without great injury thereto, a jury shall be impanneled to inquire of the yearly value of the dower, and shall assess the same; and the court shall thereupon render a judgment that there be paid to such widow, as an allowance in lieu of dower, on a day therein named, the