Zirkle v. McCue

Citations

• 26 Va. 517
• 26 Gratt. 517

Syllabus

<p>I. A guardian of infants may maintain a suit for partition of real estate held jointly by the infants and other adult parties.</p> <p>II. In a suit for partition, to authorize the sale under the statute of lands in which infants have an interest, the case must be one in which partition cannot be conveniently made, and it must appear that the interests of the parties will be promoted by a sale of the property.</p> <p>IV. M died in 1862, leaving E his widow, and ten children, two infants, the children of E, and eight adults. He left a tract of 789 acres of land, slaves, &c. In March 1863 E filed her bill, in which she asked to have her interests and those of her children (whose guardian she was) in the estate ascertained and laid off: To haveher dower in kind or commuted in money; and that the interests of her children might also be ascertained and placed under her control as their guardian, and for a settlement of the rights of all the parties. The administrator and children of M were made defendants, and the case regularly proceeded in. Held :</p> <p>III. It is not necessary that the facts necessary to warrant a decree for sale should appear from the report of commissioners or by the depositions of witnesses. It is sufficient if the facts appearing in the record reasonably warrant the decree of sale: And this especially when the proceeding is to defeat the title of an innocent purchaser.</p> <p>1. It is a suit for partition, and E might properly bring it.</p> <p>2. If in the progress of the cause, it appears to be a case under the statute for a sale of part of the land, and a sale was made, which all the adult parties and E, as guardian of her children, approved, and it was confirmed and perfected by payment of the purchase money and a conveyance, it cannot afterwards be questioned by the infants as unauthorized in that suit.</p> <p>3. Even if it is doubtful whether E could maintain such a suit, yet it having been brought, and the sale having been so made and per