House v. Whitis

• Decision Date: 31 December 1875
• Citation: 64 Tenn. 690
• Parties: House v. Whitis et als.
• Court: Tennessee Supreme Court

64 Tenn. 690

House

v.Whitis et als.

Supreme Court of Tennessee.

December Term, 1875.

FROM WILLIAMSON.

Appeal from Chancery Court. W. S. FLEMING, Ch.

MCLEMORE & WALLACE for Hicks.

T. W. TURLEY for Merrill.

SNEED, J., delivered the opinion of the Court.

The decretal order of the Chancellor in this case awarding compensation to the solicitor and guardian ad litem of the minor party defendant, must be reversed.

The facts are that Merrill sold a tract of land to Tullos Whitis, and at his request executed the bond for title to Jas. M. Whitis, a minor son of said Tullos Whitis, and the purchase money notes executed jointly by the father and son. These notes were assigned to the complainant House, who filed his bill to enforce the vendor's lien. The defendants Tullos and James Whitis answered, and in their answer insist that the contract of sale was made with the minor defendant, and the latter, in a cross-bill, insisted upon a rescission of the contract on account of his minority. Merrill filed a cross-bill, alleging that the contract was made with the father and the son; that what payments had been made were by the father, and that the son was a mere boy, destitute and penniless; that there had been no negotiation whatever between him and the son touching the trade, and that the attempt on the part of the father to treat it as the contract of the son was a fraudulent device and subterfuge to avoid his own contract. The son was made party defendant to this cross-bill of Merrill. The latter bill was sustained by the Chancellor, and upon appeal by this court the contract was held to be the contract of Tullos Whitis, the father. The land was ordered to be sold to pay the purchase money and enforce the vendor's lien. The proceeds of the sale were not enough to pay the debt and costs. The solicitor for the Whitises, and guardian ad litem of the minor, presented a petition to the Chancellor, asking compensation out of the fund thus arising from the sale, and the Chancellor fixed his compensation at twenty-five dollars, to be paid out of the fund.

We are aware of no principle upon which this order can be sustained. There was no fund or property in the custody of the court which belonged to this minor defendant, and the effect of the order was to compel his adversary to pay his debt. It would have been otherwise if there had been a fund in the control of the court belonging to the minor. In that case it is lawful and proper to allow compensation...