Creath v. Smith
| Decision Date | 31 October 1854 |
| Citation | 20 Mo. 113 |
| Parties | CREATH et al., Plaintiffs in Error, v. SMITH & ATKINS, Defendants in Error. |
| Court | Missouri Supreme Court |
1. A bill of review for errors apparent on the face of the record, will not lie after the time when a writ of error could be brought.
2. In this State, a decree against infants, divesting their title to real estate is not erroneous, because no day is given them after coming of age to show cause against it. (SCOTT, J. dissenting.)
Error to Wayne Circuil Court.
This was a bill of review filed in 1851, by the heirs of William Creath, to reverse a decree rendered against them in 1840, upon a bill in chancery, filed by Zenas Smith.
The original bill, upon which the decree complained of was rendered, set forth substantially that Smith, the complainant therein, and William Creath, in his lifetime, were partners in business; that Smith having advanced more stock in trade than Creath, the latter conveyed to the firm certain real estate to be used as stock; that afterwards, said Smith & Creath, purchased with partnership funds, and received in payment of debts, other real estate: that all of said real estate was entered upon the books of the firm as partnership property, and it was agreed between them that it should be held and treated as such; that, at the death of Creath, the firm was largely indebted, and that the indebtedness could not be discharged unless the said real estate was applied to that purpose. The complainant, Smith, prayed the court to decree that the real estate be sold, and that the proceeds, (after deducting such sum as might be assigned to the widow of Creath for her dower, unless the same could be set apart to her before the sale) be applied to the payment of the partnership liabilities. The widow and minor heirs of William Creath, and James A. Atkins, his administrator, were made defendants. The court appointed Atkins guardian ad litem of the minor heirs. He appeared and answered as guardian and also as administrator, admitting the allegations of the bill and consenting to a decree according to its prayer. His answer was not sworn to. The widow also filed an answer not sworn to, admitting the allegations of the bill, and accepting such portion of the real estate as might be set apart to her for her dower, or if the real estate could not be divided, such portion of the proceeds as might be assigned to her in lieu thereof. In October, 1840, the court, upon the bill, answer and exhibits, without further proof, decreed that the real estate be sold by a trustee appointed for that purpose, and that the proceeds, (after deducting the widow's dower), be placed in the hands of Smith, the surviving partner, to be accounted for as partnership effects. The real estate was sold pursuant to the decree, and at the sale Smith and Atkins became the purchasers. They afterwards received conveyances from the trustee for the portions purchased by them respectively. The trustee made report of his proceedings to the court, and they were approved.
In the present bill of review, the widow (who has since intermarried) and heirs of Creath seek to have the decree upon the original bill reversed, and the proceedings thereunder annulled. They state that the real estate was not needed to pay the partnership debts, that Smith had never accounted for the proceeds thereof, and that the widow had never received the sum assigned to her in lieu of dower. They specify as objections to the decree, that it was made absolute against minors, without giving them a day after coming of age to show cause against it; that the bill contained no sufficient allegations to justify it; that it was rendered upon the bill, answers and exhibits without any proof; that the answers of Atkins, as guardian and administrator, were not sworn to; and that a decree could not be rendered against minors upon the consent of their guardian.
A demurrer filed to the bill of review being sustained, the complainants sued out this writ of error.
E. & B. Bates and T. Polk, for plaintiffs in error, among other points, relied upon the following:
An infant is entitled to a day after coming of age to show cause against a decree affecting his inheritance, “according to the rules, usage and practice of courts of equity,” both English and American. (R. C. 1835, p. 506, § 1; Ruby v. Strother, 11 Mo. 417; 14 Cond. Eng. Ch. (2d part,) 160; 1 Harr. Chan. 425; Richmond v. Taylor, 1 P. Wm's, 737; Gregor v. Molesworth, 2 Ves. 109; Per Lord Elden, in Perry v. Phelin, 17 Ves. 178; 2 P. W'ms, 401; 1 Story's Eq. 606, § 652; Story's Eq. Pl. 322, § 405; Pope v. Le Mastre, 5 Litt. 77; Buler v. Bullet, 4 Bibb, 11; Williams v. Stratton, 10 Sm. & M. [[[[[Miss.] 418; Id. 428; 1 Dessaus. 201; 1 Dessaus. 109; Lamar v. Jones, 3 Harr. & McH. 328; 1 Tenn. 79.)
Glover & Richardson, for defendants in error, among other points, argued that the omission of the clause in the decree giving day to the infant defendants, after coming of age, to show cause against it, did not render it erroneous. They insisted that the rule which required a day to be given in the decree in any case was an anomaly, and not founded in good reason, and that, admitting the general rule, the present case was an exception to it, as the infants were not required to execute any conveyance. They cited the following authorities upon this point.
1. The complainants in this case have filed their bill of review, seeking to reverse a decree made in 1840. The present bill was filed in 1851. There are several errors alleged to exist in the original decree, which need no extended notice, because, if they be admitted to exist, the limitation applicable to such reviews would prevent their being examined in this proceeding. A bill of review, for errors apparent on the face of the record, will not lie after the time when a writ of error could be brought; for courts of equity, in this particular, govern themselves by the analogy of the common law, in regard to writs of error: Story's Equity Pleadings, 326. The statute has limited the prosecution of writs of error to five years after the rendition of any judgment complained of. Rev. Code, 1845. The same provision existed in the code of 1835.
2. There is one error assigned which probably is not withdrawn from the consideration of the court by the statute, which is, that the decree affects the inheritance of the present complainants, (defendants in the first suit,) who were then minors, and gives them no day after their majority for showing cause against the decree. The reason why this error, if it be one, is not cured by limitation is, that, if the due course of proceeding required that a day should be given, then there must have been the service of a subpœna upon the infant defendants after they came of age, to show cause against the decree before it would become absolutely conclusive upon them, and therefore the limitation on a bill of review would not commence from the mere rendition of the decree. It is of importance to many titles in this State, that the question of the effect of not giving day in a decree against infants, should be settled; for doubtless, there are many decrees in which no day has been given.
This question was considered by two of the judges of this court, and decided in Hendricks v. McLean, 18 Mo. 32, and the conclusion there pronounced was at variance with an intimation given in Ruby v. Strother, 11 Mo. 422. In the present case, as the same two judges alone concur in pronouncing the same judgment, the opinion will be only directed to the presentation of some additional views upon the question.
In what cases, then, was it necessary, according to the practice in chancery in England, to give day to an infant after he came of age, to show cause against the decree rendered against him in his minority? It is agreed in all the authorities that, wherever a decree requires a conveyance to be made by a defendant who is at the time an infant, he shall have a day after attaining his full age, to show cause against the decree It is also clear that, in a decree of strict foreclosure of a mortgage, which terminates the defendant's right to redeem, an infant defendant shall have a day given him. The first class embraces the great majority of cases reported in the English books, in which the necessity of giving a day has been maintained. In Whitechurch v. Whitechurch, 9 Mod., 125, it is said: “The court was clear in opinion that the decree should be final, for that, in cases of trust, infants are always bound by decrees of this court, and so they are where the will of the ancestor is contested; and it is either set aside or confirmed in equity after trial of an issue devisavit vel non, or where it is otherwise set aside at law; and there is scarce any case, where an infant hath time to show cause against a decree, but where it is necessary for him to join in a conveyance in order to complete the estate, and where such conveyance is of the inheritance, as in decrees of foreclosure of mortgages.”...
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