Gates, &c. vs Kennedy & Letcher, 3 B. Mon 167

Judge Marshall delivered, the opinion of the Court.

Conceding, as we are inclined to do, that while a proceeding for the sale of an infant’s real estate, is still pending in the Circuit Court — while the sale, though made in the country and reported to the Court, is still incomplete, the purchase money unpaid and no conveyance executed, a motion may be entertained on behalf of the purchaser, for quashing the sale and cancelling the sale bonds, on the ground of irregularity in the proceeding; such a motion must be regarded as addressed to the sound equitable discretion of the Court, which, paying due regard to the stability and object of the proceeding which it has authorized, should only favor the motion as the means of preventing the injustice of the purchaser’s being compelled to pay the price of the estate sold under its authority, when, by reason of, the irregularity of its own proceedings, he would have no certain benefit from his purchase.

If, therefore, when such a motion is made during the pendency of the proceeding, the irregularities complained of are of such a nature as that they may be cured before its termination, it seems to us that the Court should nor at once, quash the sale without giving a reasonable opportunity for curing the defects, and if all substantial objections should be done away in a reasonable time, it would be an abuse of discretion, then to grant the motion.

In this case, Kennedy, whose land had been sold under the petition of his guardian and the order of the Court, having arrived at full age before the motion to quash was made, swore to and filed a bill as an amendment or supplement to the petition, in which he made the purchaser and others defendants, and besides stating several facts which go to show that the sale ought to have been made and that it ought to be completed, tenders a bond obliging him to make title to the purchaser, and prays that the contract may be specifically enforced.

Qu. — Will the gulrdíantomake e^fo/such^urpose render tt We cannot doubt that if the Court had jurisdiction of the case and of the estate of the infant, on the petition filed, his appearance and ratification of the sale, after be had attained full age, and while the cause was still pending and the sale itself incomplete, and within the power of the Court, was a waiver of all irregularities in the mere form of the proceedings, such as the alledged defect in the order appointing Commissioners to value his estate, in the report of the Commissioners, and in the bonds given by the Commissioner who made the sale.

And even the failure to make'him a party before the sale, as required by the act of 1836, (Ses. Acts, 213,) must be considered as being fully supplied, and all objections on that account, removed by his making himself a party, when of full age, and assenting to the sale while the suit was pending and the sale itself incomplete.

If the Court had jurisdiction of the case in the first instance, it had authority to act for the infant, and however irregular and unobligatory its subsequent action might have been, and although the sale might even have been void if he had not become a party and sanctioned it while the proceeding was in progress, it was, in our opinion, capable of confirmation by his act, and by the act of the Court, against the will of the purchaser, while the sale was yet incomplete.

We regard the bill filed by Kennedy, on oath, after he came of age, as waiving all objections on his part, and supplying all omissions in the proceeding which could be supplied.

And as it furnished, moreover, full opportunity to the purchaser to make all objections to the enforcement of the sale, other than those pertaining to the mere form of the proceeding, and placed it fully in the power of the Court to insure a good title to them, and in fact to do complete equity in the case, we are of opinion that there was no error, nor abuse of discretion in overruling the motion to quash, and leaving the purchasers, to present their case in their answer to Kennedy’s bill, if the Court had jurisdiction.

The only question then is, whether the Court had juris diction of the case in the first instance; and the only ground on which this is denied is, that the petition of the guardian was not sworn to as required by the act. It never has been decided that this omission alone, was sufficient to prevent the jurisdiction from attaching, upon a petition in all other respects regular and formal.

In the case of McKee’s heirs vs Hann, &c. (9 Dana, 526,) this point was expressly reserved; and we are not now prepared to decide that the omission of the oath is fatal to the jurisdiction, nor are we to be understood as deciding that the sale would have been void if Kennedy had not come in and waived irregularities: we do not regard this point as being presented for decision by the case before us. Turner for plaintiffs : Harlan for defendants. Wherefore, the order overruling the motion to quash is affirmed.