Lake v. Perry

Wi-iiteield, C. J.,

delivered the opinion of the court.

In 1898 George Golliday,-a resident of Grenada county, died intestate, seized and possessed of the property in controversy, and leaving as his heirs certain brothers and sisters, one of whom was the appellant, Alvin Lake, a minor. Certain transactions took place, as a result of which this property was sold to the appellee for $1,650. This sale was effected without any administration; Samuel Golliday, a brother of the deceased, and these heirs, effecting the sale. The deed was signed by appellant in Memphis, where he had been living. The appel *562 lant Was at this time a minor, being nineteen years of age, and testifies that he signed the deed simply because the others did, and he supposed he had to. The appellee did not pay appellant any part, of this $1,650, of which, had the sale been valid, he was entitled to one-eiglith, placing his refusal to pay him upon the ground that the appellant was a minor.

The appellee was the chancery clerk of the county. The mother of appellant had died, leaving certain other property, in which appellant had an interest, and this property was sold through the chancery court of Grenada county, and part of the proceeds of the sale, amounting to something over $400, paid over to appellee, tire chancery clerk as aforesaid, for the minor. So that in June, 1899, appellee, said clerk, held in his hands $400 belonging to appellant, proceeds of the last-mentioned sale, and also held in his hands $210, his (the minor’s) share of the proceeds of the Golliday property, which last sum he owed the appellant individually, and which he had held ever since the sale in 1898. Appellant, as shown by the evidence, owed his brother, Harper Lake, a sum of money on account of borrowed money, and the latter, wishing to be repaid, suggested that they come down from Memphis and get this money from appellee. When appellant asked appellee for the money, he refused either to turn over the $400 or to pay appellant the amount individually owed, unless the appellant would secure the removal of his disabilities, and told him he had better get a lawyer, or go to see the chancellor. Appellant secured an attorney to prepare the papers, and on the 24th day of June, 1899, a petition was prepared by his attorney, as his next friend, to secure the removal of his disabilities, and a decree was entered tire same day so attempting to remove them, and the same day he made the second deed, being about twenty years of age then.

Appellee, of course, as appears from what has been recited, had full knowledge of the minority of appellant, and of all the transactions which we have set out above. This decree- having been obtained attempting to remove the disabilities of ap *563 pellant, appellee paid appellant the whole amount of money in his hands; appellant being1 a minor at the time. Appellant immediately went to St. Louis, where, within a few months, he very naturally spent the entire amount; in other words, wasted and squandered the whole of the money so paid over to him whilst still a minor. When he reached twenty-one years of age, he consequently had no part of the consideration of either of these deeds; the second deed also being one he made while he was still a minor to appellee, after the alleged removal of his disabilities. Appellant testifies that he had no idea that he could disaffirm the deed to his interest in the Golliday property until a few days prior to the filing of this suit, when he was so told by his attorney, and that he would not have signed said deed if he had known that he had a right to disaffirm it. There is no evidence whatever in the record showing that the appellant misled or deceived the appellee by anything said or done by him. No evidence whatever of any fraud or misrepresentation or deception in the case is shown by the record, on which any estoppel of the minor can be worked out on the long-settled and well-established principles of law applying to transactions with infants.

Appellant has never lived in the community, Grenada, since these transactions occurred, has never been about the property since, and has never had any conversation with appellee since that time. There is no evidence whatever in the records that appellant has ever done anything since he became of age to ratify these deeds. The record presents two questions, purely of law: First. Are the proceedings seeking to secure the removal of his disabilities, taken in June, 1899, valid? Second. If invalid, is the minor, appellant, estopped from recovering his property ? The court below held that, whether the proceedings were valid or invalid, appellant was estopped. From that decree this appeal is prosecuted.

The proceedings to remove the disability of a minor are governed by the provisions of sections 493 and 494, Ann. Code 1892. These sections are in these words:

*564 “See. 493. The chancery court of a county in which a minor resides may remove the disability of his minority.

“Sec. 494. The application therefor shall be made in writing by tire minor, by his next friend, and it shall state the age of such minor and the names and place of residence of his parents, and, if he has no parent, the names and places of residence of two of his nearest kin within the third degree, computed according to the civil law, and the reasons on which removal of che disability is sought; and, when such petition shall be filed, the clerk of the court shall issue the proper process as in other suits, to make the proper parties defendant, which shall bo executed and returned as in other cases; and any person so made a party, or any other relative or friend of the minor, may appear and resist the application.”

Section 494 of the Annotated Code of 1892 thus expressly provides that such petition, by the next friend of the minor, in writing, shall state the names and places of residence of his parents, and, if he has no parent, then, and then only, the names and places of residence of two of his nearest of kin within the third degree, etc., and directs the clerk to issue proper process to make the proper parties defendant; and the reason for this is contained in the last clause of section 494, where it is stated, “and any person so made a party, or any other relative or friend of the minor, may appear and resist the application.” In other words, the object of the statute plainly is to protect the minor from any injury that might accrue to him, either from an indiscreet application, or from having an irregular or void decree entered. It is simply one of the many safeguards which the law most wisely throws around minors as being incompetent to manage their own affairs. Manifestly parents are directed to be cited as the ones most proper so to protect the minor, and they are the “proper parties defendant,” referred to by the statutes, where they are, or either of them is, alive. The nearest of kin are not to be summoned as proper parties defendant if the parents are alive and capable of acting. The record in this case shows that the father of this minor was alive, and lived *565 in another county not very distant from Grenada county, residing there. It further shows that he was not summoned at all, never appeared, and had nothing to do with the proceedings.

We think it is clear, from the purpose and object of this statute, that the father was not only a proper party defendant, but an absolutely necessary party defendant, the most necessary who could have been summoned; and therefore, for this second reason, these proceedings are absolutely null and void. Having ascertained that all the proceedings taken for the purpose of removing the disabilities of this minor were not simply irregular, but were absolutely null and void, for the reason stated above, it is, of course, competent to assail such proceedings, thus absolutely null and void, anywhere. In the case of Marks v. McElroy, 67 Miss. 545 , 7 South. 408 , a case decisive here, it was said: “The power conferred by our Code upon the chancery court to remove the disabilities of minors is not judicial in its character. It may be exercised by the Legislature without the intervention of other authority, or committed to any officer or commission having no judicial authority. The relief sought is private in its character, affecting no right of others. The privilege and the method of availing of it are created and defined by the statute, and the proceedings are valid only when in conformity to its regulations. Under such circumstances the court but exercises a statutory power, and it is incumbent upon one relying upon the decree to show that the court had acquired jurisdiction under the law. No presumption of jurisdiction arises from the mere fact of its exercise.” This proposition is supported by a long list of authorities cited in the very admirable brief of learned counsel for appellant, to which reference can he had, both from this state and from other states. See Howry v. Calloway, 48 Miss. 587 , in this connection.

Speaking of the necessity of service of process on the three nearest relatives, where they are to he sommoned before a sale of the property of a ward, Judge Campbell said, in Temple v. Hammock, 52 Miss. 360 : “The service of process on the three *566 nearest relatives, if there be any in the state, is a condition precedent to the exercise of the jDOwer by the court to order a sale of the property of the ward.” And let it be noted that this was said of the exercise of a power of which the chancery court had, under the Constitution, full jurisdiction. There is but one tiring for the court to do in cases of this sort, and that is to follow strictly the plainly marked out directions of the law. As said by Judge Peyton, in Koch v. Bridges, 45 Miss. 258 : “There is no more propriety in dispensing with one positive requirement than another. A whole statute may be thus dispensed with when in the way of the caprice or will of a judge. . . . It is dangerous to attempt to be wiser than the law, and when its requirements are plain and positive the courts are not called upon to' give reasons why it was enacted.” See, also, Gibson v. Currier, 83 Miss. 254 , 35 South. 315 , 102 Am. St. Rep. 442 . The cases of Ames v. Williams, 72 Miss. 775 , 17 South. 762 , Gusdorfer v. Gunby, 72 Miss. 312 , 16 South. 432 , Johns v. Harper, 61 Miss. 142 , and other cases cited by learned counsel for appellee in his most excellent brief, are entirely aside from the point under consideration here.

Learned counsel for appellee very properly conceded, what has been thoroughly settled by all well-considered cases in this country and in England, that a minor, who has squandered the' consideration of a contract made by him while a minor, is not required, as a condition of disaffirming his deed, to return the consideration so squandered or to place the other party in statu quo. To do this would be to nullify, absolutely, tire right of disaffirmance. Jlis right to disaffirm his deed is a paramount, and supreme fight, bottomed on the very soundest and wisest public policy, and is a right to which no such condition is anywhere attached, or can be attached, without the abrogation of the protection thrown by the law around the exercise of the right. In Brantley v. Wolf, 60 Miss 432, this matter was definitely put at rest in this state, where Chalmers, J., speaking for tire court, said: “If the minor has in possession any of the con *567 sidoration received when he disaffirms his contract, or after he becomes of age, he must return it. . . . But, if he has lost or squandered the consideration during minority, this is nothing more than the law expects of him, and he cannot be required to purchase the right of reclaiming his own by still further abstractions from his estate.” And this doctrine was emphatically reaffirmed in Harvey v. Briggs, 68 Miss. 60 , 8 South. 274 , 10 L. R. A. 62, and the erroneous dicta in Hill v. Anderson, 5 Smedes & M. 216 , and Ferguson v. Bobo, 54 Miss. 121 , repudiated. See Englehardt v. Pritchett, 40 Neb. 195 , 58 N. W. 852 , 26 L. R. A. 177, 42 Am. St. Rep. 665 , and the authorities there cited, to the same effect. The same rule is emphatically declared by the supreme court of the United States in the case of MacGreal v. Taylor, 167 U. S. 688 , 17 Sup. Ct. 961, 42 L. Ed. 326 , where the great court says: “It is well settled that it is not a condition of the disaffirmance by an infant of a contract made during infancy that'he shall return the consideration received by him, if prior to such disaffirmance, and during infancy, the specific tiring received has been disposed of, wasted, or consumed, and cannot be returned.” And a little further along it is said: “If the consideration has passed from his hands, either wasted or expended during his minority, he is not thereby to be deprived of his right or capacity to avoid his deed, any more than he is to avoid his executory contracts. . . . It is not necessary that the other party should be placed in statu, quo.”

To hold otherwise, as said by Judge Chalmers, would be “to practically strike down the shield which the law, by reason of his youth and inexperience, throws around him;” and, as further remarked by that learned judge, “to squander the consideration during his minority is nothing more than the law expects of him,” a minor; and it is just because minors do nearly always so squander the consideration received by them during minority that the law has, in its wisdom, in the pro<tection of him against the natural tendencies and indiscretions *568 of youth — “the careless lapse and struggles of youth” — given him the right to disaffirm, unfettered by the condition that he shall return the squandered consideration. Indeed, it would seem perfectly idle to cite authorities on a proposition so utterly elementary, and which radicates itself in the very groundwork, in the spirit and purpose, of the doctrines of minority. But for an inadvertent dictum by Cali-ioon, J., in his specially concurring opinion in Commander v. Brazil, 88 Miss. 668 , 41 South. 497 , 9 L. R. A. (N. S.) 1117, which dictum was made by the chancellor in this case, very unwisely, the reason, in part, of his decision, this point would not need restating. No authority is cited by Justice Oaehoon; and the remark is pure dictum, because no such remark is made in the opinion of the court rendered by Mr. Justice Mayes. That it is dictum is perfectly obvious from the evidence in the case, which shows that a return of the consideration by the minor had nothing to do with the case. Certainly, if any such announcement had been made in the opinion of the majority, I most certainly would have dissented from it. That the announcement is manifestly unsound is shown by the authorities cited supra from this state and others and from the United States supreme court; and I have cited these authorities, and will close' this discussion with the citation of three others only, in order that this dictum may no further mislead, as it evidently did mislead the chancellor in the court below.

The other three authorities which I refer to are Parsons on Contracts, vol. 1 (9th Ed.) p. 365, note 1, and the authorities in that note collected. It is there distinctly stated that “if an infant has lost, wasted, or destroyed what he received, he is usually allowed to recover what he gave, without deduction.” And again it is said: “But if it is no longer in the infant’s possession, the adult is without remedy” — citing St. Louis Ry. Co. v. Higgins, 44 Ark. 293 , and Dill v. Bowen, 54 Ind. 204 , which two cases are leading cases on the subject, and citing other authorities. And again it is said in the same note that in equity *569 the prevailing view is that the rule requiring a return of the consideration does not apply when the infant no longer has the consideration, citing our own case of Brantley v. Wolf, 60 Miss. 420 . See, also, note X at the bottom of said page 365, supra, with the host of authorities therein set out, far too numerous for citation, supporting the same doctrine.

I propose now to refer, in concluding this discussion, to a very early, and then to a most recent, statement on the subject. In Tyler on Infancy, in the edition published in 1868, the true doctrine is very clearly stated in section 37, at pages 77 and 78, of that work. He there states the doctrine as follows, quoting with approval the very accurate statement of the rule in 1 American Leading Cases, p. 115, in the note to the celebrated leading case of Tucker v. Moreland, from the United States Supreme Court: “If the infant has parted 'with the consideration received or expended the money lent during infancy, it would seem, from authority, that if, on coming of age, he repudiate the contract, the adult would be remediless. It is laid down in American Leading Cases, by Hare and Wallace, as follows: ‘But if he [the infant] has during infancy wasted, sold, or otherwise ceased to possess the property, these acts done in infancy cannot be a conversion, because he then held the goods under an executory transfer of property, which authorized him to use and dispose of them as owner, and a refusal after age to deliver on demand, when he has not the goods, is not a conversion, and trover, therefore, will not lie; and this just and sound distinction is taken in the very clear opinion in Fitts v. Hall, 9 N. H. 441, 446, and recognized in Robbins v. Eaton, 10 N. H. 562, 565, and Boody v. McKinney, 23 Me. 517, 525, 526 . Nor can detinue be maintained, for it lies not where the goods, though once, in possession, have been parted with in a manner authorized by law. In such case, therefore, he may avoid the contract without being made liable for the consideration in an action sounding in tort/ 1 Am. Leading Oases, 115. To* repeat, then, the rule would seem to be that, if the contract is executory *570 on both sides, the disaffirmance of the infant releases the adult from his obligation, and thus both parties are placed in statu quo. If the contract has been executed in whole or in part by the infant, but is wholly executory on the part of the adult, the infant, on coming of age, may repudiate the transaction and recover the consideration paid. But if the contract has been executed by the adult, and the infant has the property or consideration received at the time he attains full age, and he then repudiate the transaction, he must return such property or consideration, or its equivalent, to the adult party. If, however, the infant has wasted or squandered the property or consideration received during infancy, and on coming of age repudiates the transaction, the adult party is remediless.”

The most recent, as well as, in the judgment of this writer, the most accurate and comprehensive, statement of this rule, is to be found in the second edition of the Am. & Eng. Ency. of Law, vol. 16, pp. 287, c. 293 (g). They are as follows:

“c Disaffinnance and Avoidance — (1) Eight of Infants to Eepudiate their Contracts. — The right of an infant to' avoid his contracts is one conferred by law for his protection against his own improvidence and the designs of others, and, though its exercise is not infrequently the occasion of injury to those who have in good faith dealt with him, this is a consequence which they might have avoided by declining to enter into the contract. It is the policy of the law to discourage adults from contracting with infants, and the former cannot complain if, as a consequence of their violation of this rule of conduct, they are injured by the exercise of the right with which the law has purposely invested the latter, nor charge that the infant, in exercising the right, is guilty of fraud.”

“(g) Restoration of the Consideration — aa. At Common Law — (aa) Statement of the Eule. — To give effect to an infant’s disaffirmance of his contract, it is not necessary that the other party should be placed in statu quo; for, if the law in every case required restitution of the consideration as a condition pre *571 cedent to the disaffirmance of the contract, it would often result in accomplishing indirectly what it expressly sa'ys shall not be done directly, and the very purpose of the law in permitting infants to avoid their contracts would be defeated. Por example, if an infant borrows money and improvidently disposes of it,, as the law, from his want of discretion, presumes he may do¿ this very indiscretion which the law endeavors to shield and protect becomes the means of fastening the imperfect obligation upon him, and his inability to refund what he has borrowed affirms his contract to repay it.

“(bb) When the Consideration has Passed out of the Infant’s Hands. — Consequently, if the consideration has passed from the infant’s hands, either wasted or expended during his minority*, so that he cannot restore it to the party from whom he received it, he is not deprived of his right or capacity to avoid the contract, or required to return an equivalent therefor.”

This last citation is supported by a multitude of authorities, including Brantley v. Wolf, 60 Miss. 432 , supra, and Harvey v. Briggs, 68 Miss. 60 , 8 South. 274 , 10 L. R. A. 62, supra. Many other authorities, directly in point, are set out in the brief of the learned counsel for appellant. The chancellor misconceived the cases of Commander v. Brazil, 88 Miss. 668 , 41 South. 497 , 9 L. R. A. (N. S.) 1117, supra, and Ostrander v. Quin, 84 Miss. 230 , 36 South. 257 , 105 Am. St. Rep. 426 . These cases decide only, as stated by Mr. Justice Mayes, in the opinion in the former cases, that “when a minor has reached the stage of maturity in years and physical appearance calculated to. deceive a person of ordinary prudence, and the minor does deceive such person as to his age, and asserts that he is of full age, and induces a contract to be made with him, and accepts the benefits of his contract, he will not be heard at any future time to deny that he was of full age at the time the contract was executed, and thereby escape the obligation of his contract, where the party dealing with him has dealt with him believing him of full age.” These two cases are cases merely and simply of a minor will *572 fully, fraudulently, and corruptly representing himself to be of full age, and thus obtaining, 'because of such misrepresentation, consideration which he would not have gotten, but for such deception and fraud practiced upon the other party, who himself acts in good faith, without knowledge of his infancy.

In this case the citation of these authorities is perfectly idle, because the appellee knew all about the minority of the appellant, and dealt with him without one solitary misrepresentation on the part of appellant having been made to him. These cases have no sort of application to the case at bar. Indeed, the learned chancellor in this case stated in his opinion that “the sole question is as to whether he shall be held bound by his conveyance made by a minor, or, rather, whether or not the decree of the chancellor, removing his disabilities of minority, is invalid.” The chancellor then proceeds, however, to refrain from deciding whether the proceedings attempting to remove the disabilities were valid or invalid, but rests his decision upon this ground: Whether such proceedings were valid or invalid, that those proceedings and they alone estopped the appellant. It was correct enough, if he was going to hold the minor estopped, to rest it upon these proceedings alone, since the record does not show any fraud or misrepresentation or deception practiced by the minor, as to his age or otherwise. But the fatal error in the chancellor’s reasoning was that these proceedings alone, even . though utterly void, could constitute an estoppel of the minor to file this bill within the principles of law, which announce what estoppel is and when it is to be applied. It is true that this court has aligned itself, in Ferguson v. Boho, 54 Miss. 121 , with those courts which hold that in exceptional cases the minor may be estopped by his conduct, upon the principle, quaintly and accurately put by a great English judge, Lord Cowper, that “a minor old enough and cunning enough to contrive and carry out a fraud, he ought to make satisfaction for it.” Watts v. Cresswell, 9 Vin. Abr. 415; s. c. 3 Eq. Cases Abr. 515.

But, in order to raise estoppel out of the evidence against the *573 minor, that evidence must plainly show, not doubtfully or vaguely, but clearly and convincingly, the presence of actual, active, and willful fraud and misrepresentation, as held in Demourelle v. Piazza, 77 Miss. 433 , 27 South. 623 , which fraud and misrepresentation must have operated to deceive and mislead the other party, to his damage. The appellee here was not misled, was not deceived, as to the age of appellant. There is absolutely nothing in the record on which to predicate an estoppel, save only the proceedings attempting to remove his disability. Whenever it is conceded or shown that these proceedings were, as we have shown them to be, absolutely null and void, then it is idle to talk of using the mere decree, and that only as a means of estoppel. This would be an error, fatal in a twofold aspect: First, it would be treating a decree absolutely null and void as if it were valid; and, second, it would raise an estoppel, not out of the conduct of the minor, affirmatively shown to have been characterized by willful and active fraud and misrepresentation, but out of the mere action of a court, and that action wholly void. That a void decree like this cannot have life infused into it for any purpose, much less for the important purpose of working an estoppel against a minor, is thoroughly settled. Mr. Freeman, in his work on Judgments (section 117, 3d ed.), says: “A void judgment is in legal effect no judgment at all. By it no rights are derived. From it no rights can be obtained. Being worthless in itself, all proceedings under it are equally worthless. It neither binds nor bars any one. All acts performed under it and all claims flowing out of it are equally worthless.” See Lester v. Miller, 76 Miss. 309 , 24 South. 193 ; Harris v. State, 72 Miss. 960 , 18 South. 387 , 33 L. R. A. 85, and a multitude of authorities not necessary to be cited in support of so elementary a proposition.

The authorities cited by the learned counsel for appellee with respect and to the effect that one who has received the benefits of a void judgment or decree cannot be heard afterward to assail such decree, many of which relate to the reception of proceeds *574 ■of lands sold belonging to1 decedents, are perfectly sound decisions applied to tbe facts of those cases, but are not in point here at all.

The last contention urged by learned counsel for appellee is that the appellant ought not to be permitted to file this bill because he waited seven years after attaining his majority. There is no evidence whatever, as stated before, .of anything said or done by the appellant, during this lapse of time, out of which an estoppel proper can be worked, and it has been settled in this state, beyond any possible discussion, that no period of time, .short of the bar of the statute of limitations, can be used a's a mere bar of limitations, or as furnishing any laches which will •constitute an equitable bar to the bringing of a suit. See Cox v. Mortgage Co., 88 Miss. 97 , 40 South. 739 ; Hill v. Nash, 73 Miss. 862 , 19 South. 707 ; and Houston v. Building Association, 80 Miss. 31 , 31 South. 540 , 92 Am. St. Rep. 565 . In that case we said, and reiterate it once more: “It was tire right of complainants, so far as the mere delay is concerned, to file their bill on the last day before the expiration of ten years, just as fully as if they had filed it on the first day after the sale.” 'In other-words, the law in this state on this subject is now, and has been for many years, that no period, short of the bar of the statute •of limitations, can operate as a limitation on the right to sue. Nor does the doctrine of mere laches ever operate in this state to bar the bringing of a suit; but the right to bring a suit, either in law or in equity, may be not barred as of limitation, but cut off as of right and equity, if the facts in the case shall show clearly that the conduct of tire party suing has plainly been such as to operate against him an estoppel within the meaning of the well known laws of estoppel.

This particular case operates, of course, a great hardship upon the appellee, who is not shown to have taken any advantage whatever of the appellant, or to have paid anything less than full value for the land, or to have been guilty of any inequitable conduct. But it is not the first case, by marry thousands, in which *575 adults, dealing with minors, have done so at great loss. The law cares nothing in the world about this appellee, nor this appellant. It cannot take any account whatever of the hardship in any case. If it did, there would be no law as a fixed rule or a guide on any question. But the law does care, and properly cares everything, about the preservation, unimpaired, of the great paramount right of minors to disaffirm, under proper circumstances, their contracts entered into during the period of indiscretion and incapacity, which exists before their arrival at maj ority. It is of the very highest necessity that this right of minors shall be preserved. It is of no consequence whatever to the law whether its preservation entails hardship or not. With that the courts have and can have no cortcern.

When all, however, is granted that can be claimed as to the good faith of appellee, the case is not advanced one step towards its solution. Whilst it is true that there is no evidence here of any overreaching or fraud on tire part of the appellee, it is equally true, as to that, that this record shows that appellant wasted the whole consideration during his minority, -and not after he reached his majority; that he never had another word of conversation with the appellee after the second deed was made; that he did not live in Grenada, but in Memphis; that he never was about thé property involved, so as to be charged with the knowledge of any improvements being put thereon. In short, the record shows this appellant to have had no communication with the appellee, and to have said or done nothing with regard to this transaction, after the second deed was made in 1899.

The case turns, therefore, not on any good faith on the part of appellee, but on the utter absence of any willful, active, fraudulent conduct on the part of appellant which could furnish any estoppel against appellant. It is idle to talk about-the appellant having procured the invalid decree. The appellant made no effort whatever to get any decree until the appellee told him the money would not be paid until the disabilities were removed *576 and sent him to- the chancellor. The suggestion that bis disabilities bad to be removed, a perfectly proper suggestion, was made by tbe appellee to tbe appellant. Hardship in the ease to tbe appellee results from tbe voidness of tbe decree, not from anything appellant has said or done; and, as previously shown, it would be mockery of justice for us to decide that tbe decree was absolutely null and void, and then permit the appellee to use such void decree as if it were valid.

This whole case may be shortly put in one simple statement, and that statement is this: That tbe presence of good faith on tbe part of Perry, tbe appellee, cannot create tbe capacity to contract on tbe part of Lake, the appellant.

It follows that tbe decree of tbe learned court below is erroneous, and it is reversed, and tbe case remanded, to be proceeded with in accordance with this opinion.

Reversed.