Perry v. Wheeler, &c.

upon general principles, we had a doubt as to the proper constitution of the board, that doubt would be removed by the provision of title 3, canon 7, that "in all cases in which a canon of the general convention directs a duty to be performed or a power to be exercised by a standing committee, or by the clerical members thereof, or by any other body consisting of several members, a majority of said members, the whole having been duly cited to meet, shall be a quorum, and a majority of that quorum so convened shall be competent to act, unless the contrary is expressly required by the canon."

This provision includes boards of reference, and the canon providing for their constitution and organization does not expressly, or even by fair implication, require that all of the five members shall act.

We conclude that the board acting in this case was legally organized, and that it kept within the scope of its powers, and hence that its recommendations, approved, as they have been, by the bishop of the diocese, must be respected by the civil tribunals.

Another objection urged to the action of the board is that the canon under which it was appointed was not adopted by the general convention of the church until after Dr. Perry had entered into his contract with Grace Church.

This canon was not intended to and does not operate to give either of the parties a new, nor to take from either an existing right. It is in the nature of a remedial statute, and merely prescribes the manner in which the existence of the facts authorizing a dissolution of the connection between a rector and his congregation shall be ascertained, and the terms and conditions of the dissolution fixed and determined.

As we have already seen, the right of the contracting parties to have this relief existed from the beginning, and grew out of the very nature of their contract, and it seems manifest that in adopting this canon the convention exercised

Perry v. Wheeler, &c.

only a reasonable, necessary, and unquestionable ecclesiastical power.

It was the duty of Dr. Perry to surrender the possession of the rectory and grounds on the 1st day of June, 1872, and the failure of the appellees to pay him the arrearages due on his salary did not excuse him from the performance of that duty. The dissolution of the pastoral connection and the surrender of the church property were not made to depend upon the performance by the congregation of the duties imposed upon it by the board of reference.

The tender of the arrearages of salary to appellant was not good in law, and did not stop the accrual of interest; but as the reasonable rents of the property wrongfully withheld by the appellant greatly exceed in amount the principal of the sum due him, with its accrued interest, we need not discuss that question.

The court below did not err in setting off the rents against the claim for salary, nor in requiring the appellant to surrender the possession of the rectory and grounds.

Wherefore its judgment must be affirmed.

Revill's heirs v. Claxon's heirs.

12bu 558 e112 394

j112 403

CASE 14-PETITION ORDINARY-JAN. 25.

Revill's heirs v. Claxon's heirs.

APPEAL FROM OWEN CIRCUIT COURT

1. INFANTS ARE MADE PARTIES TO THE ACTION, THOUGH NOT NAMED IN THE CAPTION OF THE PETITION.

Infants whose names appear in the body of the petition filed by their guardian for the sale of their interest in land, being necessary parties, recognized and treated as such by the court, judgment rendered for the sale of the land, sale made and confirmed, are held to have been parties to the proceedings and bound by the judgment of sale.

"The mere omission of the clerical formality of writing their names at the head of the petition is an objection too unsubstantial to render the solemn judgment of a court a nullity."

2. DEFECT IN COMMISSIONER'S REPORT IN ACTION TO SELL INFANTS' LAND, in failing to report whether the infants had any other estate besides the land, and if so, the annual income therefrom, was an irregularity, but does not render the judgment of sale void.

3. JUDGMENT FAILING TO DESIGNATE PLACE OF SALE, and sale having been made by the commissioner at a place other than the court-house door of the county, and reported to and confirmed by the court, the judgment of confirmation is not void.

4. ORDERS ENTERED OUT OF PLACE IN THE SAME DAY'S PROCEEDINGS are effectual when signed by the judge.

An order approving a guardian's bond in an action for the sale of infants' land, being entered on the same day of the judgment of sale, is effectual, although entered on the record after the judgment. 5. The law takes no note of a fraction of a day, and will, when necessary to uphold judicial proceedings, treat the orders of a single day as having been made in the order in which the law required them to be made.

6. The records of the proceedings of a court do not become orders, in the legal sense of that term, until they are signed by the judge; and when he signs the record the whole of that day's proceedings is thereby vitalized, and each order becomes operative at the same moment.

Revill's heirs v. Claxon's heirs.

The order approving the bond is therefore as effectual as if it appeared on the record before the judgment or was incorporated in it.

H. P. MONTGOMERY FOR APPELLANTS.

1. The infant children of Catharine Revill were not made parties to the suit in which the land was sold, and therefore they are not bound by the sale.

2. The court had no jurisdiction to order the sale, because the commissioners appointed to do so did not report the net value of the real or personal estate of the infants nor the annual profits. (Sec. 2, art. 3, chap. 86, Revised Statutes; Wells v. Cowherd, 2 Met. 514; Bell v. Clark, 2 Met. 573; Woodcock v. Bowman, 4 Met. 40.)

3. A judgment for the sale of infants' real estate, and a sale made in pursuance thereof when the bond has not been executed by the guardian prior to the judgment, are void. (Sec. 2, art. 3, chap. 86, Revised Statutes; Civil Code, p. 528, note A.)

4. The execution of the bond required by the statute is necessary to give the court jurisdiction to order the sale, and the execution of the bond after the order of sale will not do. (Barber's adm'r v. Hopewell,

&c., 1 Met. 260; 16 B. Mon. 296; 18 B. Mon. 391.)

That the judgment provides that a sale shall not take effect until bond be given, does not exempt it from the principle. (Megowan, &c. v. Way, &c., 1 Met. 418.)

5. The paper filed as an amended petition did not make the infants parties, because it did not set out their names as plaintiffs or defendants. (Newman's Pl. & Pr. 217.)

6. The decree did not direct when and where the sale should be made. The sale was not made at the court-house door, as required by section 6, article 6, chapter 86, Revised Statutes, and the tract of land was sold as containing three hundred and fifty acres when in fact it contained three hundred and eighty-eight acres.

T. N. & D. W. LINDSAY FOR APPELLEES.

1. The petition for the sale of the land was by all interested in it except one, and that one was a married woman who was made a defendant and consented to the sale.

2. By act of March, 1863 (Session Acts, p. 114), where sale of land is necessary for a division, the formalities required by chapter 86, Revised Statutes, are dispensed with.

3. The report of the commissioners showing what estate the infants owned, and that the infants had no income of any kind, and that their interest required the sale, was sufficient.

Revill's heirs v. Claxon's heirs.

4. The bonds of the guardians of the infants, executed on the same day the judgment of sale was rendered, were sufficient, although in entering the orders the clerk transferred them and entered the order approving the bonds after entering the judgment, but in the same day's proceedings.

JUDGE COFER DELIVERED THE OPINION OF THE COURT.

James Simpson devised one eighth of a tract of land, supposed to contain three hundred and fifty acres, to his daughter, Mrs. Catharine Revill, wife of E. S. Revill, for life, with remainder to her children. W. G. Simpson was also a devisee, and as such entitled to one eighth of the land, and he purchased from five other devisees their interest, thus becoming the owner of six eighths. He then, in conjunction with E. S. Revill and Sinclair B. Merrill, guardian of Gabriel R. Merrill, who owned one eighth of the land, filed his petition against Mrs. Revill for a sale of the whole tract, alleging that a sale would redound to the interest of the said Gabriel and Mrs. Revill. An amended petition was afterward filed, which reads as follows:

"The plaintiff, Eldridge S. Revill, states, by way of amendment to his original petition herein, that he is the statutory guardian of Jas. E., Davie L., Juliett, Wm. G., Sinclair M., and Alvin D. Revill, who are infants of tender years; that said infants, by their guardian, join in the prayer of the original petition for the sale of the land mentioned therein. The plaintiff, E. S. Revill, guardian, etc., states that he believes that the sale of the land described in said petition will redound to the benefit of said infants. These infants are entitled to the remainder of the share of their mother, C. Revill, defendant herein."

Mrs. Revil upon privy examination consented to a sale. There is no order in the record appointing commissioners to report the net value of the infants' real and personal estate and the annual profits thereof, etc., but a report was filed of