WHITE
v.
JOYCE.

*142 Mr. Henry Wise Garnett and Mr. A.S. Worthington for appellants.

Mr. William John Miller for appellees. Mr. J. Coleman was on the brief for Mary A. Rodrequez.

MR. JUSTICE SHIRAS, after stating the case, delivered the opinion of the court.

The view that we take of this case renders it unnecessary for us to consider all the questions presented by its somewhat complicated facts, and discussed in the arguments and briefs of counsel.

The bill originally filed, on November 29, 1871, by Andrew J. Joyce, as surviving partner of the firm of P. White & Co., against Mary White, the administratrix of Patrick White, the deceased member, alleging that there had never been a settlement of the affairs of the partnership, and that, upon such settlement, there would be a balance due the complainant, was, upon such allegations, altogether a proper one, in entertaining which no fault can be found with the court below. And as it further appears that there was real estate which had been purchased with firm money, and which was standing in the name of Patrick White, it may be conceded that there was no impropriety in making the widow and children of the deceased partner parties defendants to such bill. Of course, the only purpose in making the widow and heirs parties was to estop them from claiming title to the real estate standing in the name of Patrick White which belonged to the firm, and the sale of which was necessary to pay the partnership debts.

The bill alleged that the children of Patrick White were infants, under the age of twenty-one years, and asked that the court appoint a guardian ad litem; and the record discloses that the court so appointed one James White, who filed an answer as such, in which it was alleged that said infants *143 could not admit or deny the allegations of the bill of complaint, and that the guardian, therefore, submitted their rights and interests to the protection of the court. This answer was filed January 5, 1872.

Auditors were appointed to state an account, and the case was so proceeded in that, on May 29, 1877, a decree was entered, confirming the auditors' report, decreeing that there was due from Mary White, administratrix of Patrick White, deceased, to the complainant the sum of two thousand seven hundred dollars, with interest from June 1, 1870; that there was due by the partnership the sum of two hundred and ninety-four dollars; that the real estate mentioned in the bill was partnership property, and was to be sold in order to settle the partnership and pay the indebtedness, and appointing trustees to make such sale.

No further proceedings are disclosed by the record until, on April 20, 1880, the trustees, who had been appointed to make sale of the real estate, filed their bond conditioned for the faithful performance of their duties.

On May 24, 1882, more than eleven years after the death of Patrick White, and five years after the entry of the decree settling the account between the partners and ordering the sale of the partnership real estate, Andrew Joyce filed another bill, which he styled a supplemental bill, in which, after stating that the trustees had, after effort made, failed to sell the said partnership real estate, it was alleged that Patrick White had died seized and possessed of certain real estate, and it was asked that a decree should be granted ordering the sale of such real estate. To this bill Mary White, administratrix of Patrick White, deceased; Francis P. White, a son who had become of age since the filing of the first bill; Mary White, widow; Mary S. White, James R. White, Lewis C. White, and Charles A. White, minor children of Patrick White, deceased, were made defendants. By an order made July 5, 1882, Mary White, the mother, was appointed guardian ad litem, and, as such, she filed an answer in which it was stated that said infant defendants submitted their rights to the protection of the court. Mary White and Francis P. White filed *144 an answer admitting the allegations of the bill. The result was a decree dated September 12, 1882, ordering a sale of the real estate of Patrick White, deceased.

Without repeating the history of the subsequent proceedings, which are detailed at length in the statement of the facts, we come to the bill of review filed, on June 13, 1884, by the widow and children of Patrick White, by which it was sought to set aside the decree of September 12, 1882. The bill complained of many mistakes of fact and irregularities in the proceedings, which we do not find it necessary to notice. What we do deem essential allegations are those in which it is stated that the original bill, filed on November 29, 1871, was a bill in equity brought by a surviving partner to settle the affairs of the copartnership, and that the bill filed May 24, 1882, upon which the decree of September 12, 1882, was founded was an entirely new cause, of a different character and nature from the original cause, being a bill in equity by a creditor of a deceased debtor against his heirs, infants and adults, to subject his real estate to the debt claimed to be due; that this was a suit under the act of Maryland of March 10, 1785, c. 72, and could not properly be regarded as supplemental to the first bill.

The section of the act referred to is in the following terms:

"SEC. 5. If any person hath died, or hereafter shall die, without leaving personal estate sufficient to discharge the debts by him or her due, and shall leave real estate which descends to a minor or person being idiot, lunatic, or non compos mentis, or shall devise said real estate to a minor or person being idiot, lunatic, or non compos mentis, or who shall afterwards become non compos mentis, the chancellor shall have full power and authority, upon application of any creditor of such deceased person, after summoning such minor and his appearance by guardian, to be appointed as aforesaid, and hearing as aforesaid,. . . and the justice of the claim of such creditor is fully established, if, upon consideration of all circumstances, it shall appear to the chancellor to be just and proper that such debts should be *145 paid by a sale of such real estate, to order the whole or part of the real estate so descending or devised to be sold for the payment of the debts due by the deceased."

This statute was considered by this court in the case of Ingle v. Jones, 9 Wall. 486, 495, and it was held that "it makes the proceeding against the administrator and the heir, when the latter proceeding is necessary, entirely independent of each other. The duties of the administrator are confined to the personal estate, and never extend beyond it. If that be insufficient to discharge the debts, and it be necessary to resort to the realty of the deceased for that purpose, a proceeding against the heir must be instituted. In that event, whatever has been done by the administrator is without effect, as to the property sought to be charged. A judgment against the administrator is not evidence against the heir. The demand must be proved in all respects as if there had been no prior proceeding to effect its collection, and the statute of limitations may be pleaded with the same effect as if there had been no prior recovery against the personal representative."

Upon principle and authority, we think it clear that the bill filed May 24, 1882, seeking to subject the real estate of Patrick White which had descended to his heirs to the payment of debts, was essentially a new proceeding, in which it was competent for the heirs to plead the statute of limitations. Calling the bill a supplemental one would not deprive them of that right.

The record shows that, in the answer put in on behalf of the minors who were defendants by the guardian ad litem, it was alleged that "the said defendants being infants of tender years submit their rights to the protection of the court."

It is immaterial whether the effort to reach the real estate in the hands of the heirs by a so-called supplemental bill was or was not for the purpose of escaping from the operation of the statute of limitations. Even if the second bill were regarded as an amendment of the first, it would not deprive the defendants of their right to plead the statute of limitations, at least in equity. Merchants' Bank v. Stevenson, 7 Allen, *146 489. By the statute in force in the District of Columbia, (Maryland Acts of 1715, c. 23, § 2,) the action was barred in three years, or on the 1st day of June, 1873. The second bill was filed on May 24, 1882, nearly nine years after the suit was barred.

It is sufficient to say that it was the duty of the court to give the minor defendants the benefit of the statute. The act under which the proceedings were had provided that, before real estate which had descended to minor heirs could be sold to pay debts of the ancestor, "it shall appear to the chancellor to be just and proper that such debts should be paid by a sale of such real estate."

The answer of the minors, filed by the guardian ad litem, craved the protection of the court:

"The answer of an infant being expressed to be made by his guardian, the general reservation at the beginning, the denial of combination, together with the general traverse at the conclusion, common to all other answers, are omitted. The reason of this is that an infant is entitled to every benefit, which can be taken by exception to a bill, although he does not make such reservation, or expressly make the exception. He is also considered as incapable of entering into the unlawful combination; and his answer cannot be excepted to for insufficiency; nor can any admission made by him be binding." Story Equity Pl. § 871.

In Wright v. Miller, 1 Sandford Ch. (N.Y.) 109, it was held that the answer of an infant defendant by his guardian ad litem is not binding upon him, and no decree can be made on its admission of facts. Where relief is sought against infants, the facts upon which it is founded must be proved; they cannot be taken by admission; and Wrottesley v. Bendish, 3 P. Wm. 236, was cited to that effect.

Where there are infant defendants, and it is necessary in order to entitle the complainant to the relief he prays that certain facts should be before the court, such facts, although they might be the subject of admission on the part of the adults, must be proved against the infants. 1 Daniell's Ch. Pr 238; Mills v. Dennis, 3 Johns. Sup. Ct. 367.

*147 This record discloses that no proof whatever was adduced to sustain the allegations of the second bill. The admissions of the answers were solely relied on.

It is, however, contended on behalf of the appellees that where a decree is signed by the court, with the consent of the party or of his solicitor, there can be no bill of review except for fraud or collusion; that, even in the case of infants, a decree entered with the consent of their solicitor cannot be set aside except on allegation and proof of fraud; and Walsh v. Walsh, 116 Mass. 377, and Thompson v. Maxwell, 95 U.S. 391, 398, are cited to that effect.

To bring themselves within the scope of those cases the appellees assert that the minor defendants by a solicitor of record consented to the decree of September 12, 1882. This is denied by the appellants.

The issue upon this question is found in certain allegations of the bill of review and in the answers thereto. The bill alleges that the order of May 24, 1882, giving leave to the complainant to file the supplemental bill, and which purports to have been passed by consent, was in the handwriting of the solicitor for the complainant; that the order of July 5, 1882, appointing Mary White, mother of the infant defendants, their guardian ad litem to answer said supplemental bill, does not show on whose motion the order was passed, and the order was in the handwriting of the solicitor for the complainant; that the answer filed on July 12, 1882, by Mary White as guardian ad litem was so filed by the guardian ad litem without an attorney or solicitor, and was entirely in the handwriting of the solicitor for the complainant, that the decree of September 12, 1882, appears by the record to have been passed when the minor defendants were not represented by any attorney or solicitor.

To these allegations the defendants in the bill of review answer, acknowledging that said orders were in the handwriting of the solicitor for the complainant, and, as respects the answer of the guardian ad litem, they say: "We admit the said answer of the guardian ad litem is in the handwriting of the solicitor for the complainant, as alleged, and, in further *148 answer, we are advised by said solicitor that he, from the best of his knowledge, remembrance, and belief, prepared said answer at the request of said Mary White, guardian ad litem of said infant defendants, and that before she swore to and filed the same she submitted the same to Mr. Morris, solicitor of record in said cause for said defendants." And they further allege that "we are advised and believe, and, so believing, say that said cause was heard by the court, on the statement of facts contained in the papers and proceedings in said cause given to the court by solicitor of complainant and the said defendants, and the decree was prepared by the solicitor of complainant and was submitted to Mr. Morris, solicitor of defendants in said cause, who, on behalf of the said defendants, consented to the same, and was then signed by the court; and in further answer we say that we are informed and believe that Mr. Morris represented as solicitor on the hearing of said cause not only the infant defendants and their guardian ad litem, but also represented as solicitor in said cause the said Mary White and Francis P. White."

No evidence was taken by either party on this question. The answers can scarcely be regarded as responsive to the allegations of the bill, beyond the admissions therein contained, that the orders and the answers of the guardian ad litem were in the handwriting of the solicitor for the complainant. The remaining statements were in the nature of avoidance, and, at any rate, only profess to be based on hearsay.

When we resort to the record of the case in which the supplemental bill was filed, and which forms part of the record before us, we fail to find any evidence that the infant defendants were represented by any solicitor. The answer put in on their behalf, and in which their rights are submitted to the protection of the court, purports to be filed by the guardian ad litem, and is not authenticated by the signature of any counsel. It is true that at the foot of the decree of September 12, 1882, and which, it may be observed, is not a final one, but merely an order of sale, there is the following entry: "I agree to the foregoing decree. M.F. Morris, solicitor for defendants."

*149 But it is by no means a necessary inference, from this writing, that Mr. Morris either was or represented himself to be solicitor for the infants. The record shows that when the previous order of May 24, 1882, was made granting leave to file the supplemental bill, Messrs. Merrick and Morris appeared as solicitors for the adult defendants, and consented to the filing of such bill. But it cannot be claimed that they thereby represented themselves to be entitled to represent the infants, because the bill itself shows that the infants were unrepresented, and prayed that a guardian ad litem should be appointed. The appointment of the guardian was subsequently made on July 5, 1882, when first the infants were in court. If the infant defendants are to be estopped by the consent of a solicitor, as against their submission of their rights to the protection of the court, the fact that they were actually represented by a solicitor should be made to appear either by a formal entry appearing of record, or by evidence showing such fact. It is contended in the brief of the appellees that such formal entry was made, by the filing of a præcipe signed by R.T. Merrick, requesting the clerk to enter his appearance for the defendants, and it is said that it is well known that Mr. Morris was Mr. Merrick's partner. It is enough to say, that this appearance by Mr. Merrick for the defendants was entered on January 3, 1882, several months before the supplemental bill was filed. It would be strange reasoning that would find in such an appearance any right to appear for infant defendants in a bill not yet filed.

Nor can it be safely implied, from the fact that Mr. Morris styled himself as solicitor for the defendants, and appeared before the auditors as such, that he had been employed to act as solicitor for the infants. Such conduct was entirely consistent with the admitted fact that he was authorized to appear for the adult defendants.

Without pursuing the subject further, we reach the conclusion that the court below erred in dismissing the bill of review so far as the minors were concerned, and that the decree should be modified so as to protect their interests in the estate which they inherited from the father, Patrick White.

*150 A different conclusion is necessary as respects Mary White, the mother, and Francis P. White, the adult son. The record discloses that, on July 12, 1882, they filed a joint answer to the bill filed May 24, 1882, in which they admitted the allegations thereof; and on September 12, 1882, their solicitor, Mr. Morris, consented to the decree of that date. We perceive no proof of fraud or collusion affecting them, and in their petition of November 30, 1888, in which they prayed for leave to withdraw their answer, they do not aver that they were induced to answer as they did by reason of any misrepresentation or fraud practised upon them. The long delay of six years from the filing of their answer, and of more than four years from the bringing of the bill of review, is not satisfactorily explained, and, upon well-settled principles, a court of equity must leave them in the position in which they voluntarily placed themselves.

The decree of the court below is reversed; the appellants, Mary White and Francis P. White, and the appellees to pay one-half of the costs, respectively, and the cause remanded with directions to proceed in accordance with this opinion.