CHARLESTON, 7 152 34 338 1874. January Term. HINCHMAN, ADMR. v. BALLARD, ADMr. February 23, 1874. I. When the court erroneously makes an order that unless a person who is not a party to the bill, is so made, within thirty days from the date of the order, by amended bill, that the plaintiff's bill should stand dismissed, with costs to the defendants, without prejudice to any other suit, &c., and the plaintiffs failed to make such party a defendant by amended bill, or otherwise, within the thirty days or afterwards. And the defendants afterwards, and after the thirty days had expired and before any other action was taken in the cause by the court, or any of the parties appeared in court and asked and obtained leave of the court, without objection, to file a cross bill in the cause, against the plaintiffs in the original bill, and, in pursuance of such leave, did file such cross bill, to which the defendants filed their answers and plaintiffs and defendants afterwards took and filed the depositions of various witnesses in support of their pretentions in the original cause, and various orders and decrees were afterwards made by the court in the proceedings, on both the original and cross bills, including the decree adjudicating the principles of both causes from which the appeal is taken as though said order of conditional dismissal had never been made, without objection being made or taken, by the court or any of the parties to the cause, proceeding further in the cause, at any time, after the expiration of the said thirty days: It is too late for the appellants, who were defendants below, to be heard in the appellate court, to object that the original cause at and after the expiration of the thirty days from the date of said order of conditional dismissal become, and was, dismissed by virtue of such order, and that all subsequent proceedings of the court in the causes, were, in consequence thereof, irregular and inoperative or void. In such case the appellate court will ordinarily consider that the causes were proceeded with by the court by consent of parties. II. If, in the case above stated, the person so directed to be made a party to the original cause, was a necessary and proper party. thereto, under the circumstances above stated, the appellate court will not reverse and set aside the decree of the court below adjudi cating the principles of the cause, because of such conditional order of dismissal and give full effect thereto; but in such case the appellate court will ordinarily reverse the decree appealed from, and direct such person to be made a party, and the cause to be proceeded with, as though such conditional order of dismissal had never been made. III. A copy of an order of the county court of Alleghany county Commonwealth of Virginia, attested by the clerk of such court, may be received and read as evidence in lieu of the original, by the courts of this State, under the provisions of the act of the Legislature of 1866, upon that subject, which is incorporated into the Code of this State, of 1868, in sections five, six and seven of chapter one hundred and thirty. IV. A copy of such order, so attested, is proper evidence of the ap pointment, by the county court of said Alleghany county, of a committee of an insane person. V. When a demurrer is filed to a bill and the court proceeds to adjudicate, and does adjudicate, the principles of the cause, in favor of the plaintiff, without first acting pro forma upon the demurrer, it will be considered that the court in rendering the decree adjudicating the principles of the cause considered the sufficiency of the bill, and substantially overruled the demurrer thereto, and this Court will not reverse the decree, adjudicating the principles of the cause, for this cause alone. VI. L. by contract in writing, under seal executed by him, and J. and H. sells to J. and H. several tracts of land for a stipulated price to be paid by J. and H. to L. at stated times; and under and by virtue of the contract of sale. J. and H. are put in actual possession of the lands by L. and J. and H. in pursuance of such contract, pay a large amount of the purchase money, but not all of it, and it is applied in discharge of purchase money liens existing against part of the land. Afterwards, and while J. and H. are in possession of the land under such contract, and before all the purchase money is paid by J. and H., L. P. H. is appointed committee of L., who is then insane, by the county court. After his appointment as committee, L. P. H. filed a bill in the circuit court of the county where the land was situated against J. and H. and others, to rescind and annul said contract of sale, upon the ground that L., at the time of its execution, was insane. Afterwards, and while the suit was pending, L. P. H., committee, and J. and H. executed 1874. January Term. 1874. January Term a paper writing in these words, to-wit: "This article of agree- sane. LEWIS P. HOLLOWAY, COM., THOMAS JOHNSON, WILLIAM HINCHMAN, Jr., (Seal.) (Seal.) (Seal.) L. P. H. died after the date of this agreement without ever having done any act towards consummating the same. L. also died inJ. and H. continued in the possession of the lands as before. J. and H. never saw L. P. H. after the date of said agreement. After the death of L. P. H. and L., and in October, 1866, J. and H., still in the possession of said lands and without having actually performed any part of said agreement, filed their bill, in the circuit court of the county of Monroe, in this State, where the lands are situated, against the personal representative and legal heirs of L., &c., for the specific execution of said agreement of compromise; and the bill does not allege that L. was insane at the date of the contract by him to plaintiffs-HELD: 1. That as the said agreement of compromise, if it were complete and final and carried into effect, would change the nature andcondition of the estate of L. (the insane person), L. H. P., as committee had no authority to make the same, so as to bind the personal representative and legal heirs of L. without the approbation or direction of the court by which he was appointed committee, or of some other court having jurisdiction of the subject. 2. That as the said agreement of compromise was made by the committee without the approval or direction of the court by which he was appointed, or of any court having jurisdiction of the subject, a court of equity will not decree a specific execution thereof, as against the personal representatives and legal heirs of L., unless it appears to the satisfaction of the court that the agreement was beneficial and advantageous to L. or his estate. 3. Although a committee of an insane person may sue to set aside a deed or contract of the insane person, touching his estate, made prior to the time he was appointed committee, upon the ground that such insane person was insane at the time of making such deed or contract of sale: Still if the committee does bring such suit, and, while the suit is pending, he makes an agreement of compromise with the defendant, which, if carried into effect, will change the nature and condition of the estate of the insane person, without the direction or approval of the court having jurisdiction of the subject, a court of equity will not in another suit, decree specific performance of such agreement of compromise against the personal representatives and legal heirs of the insane person, unless it appears that the insane person was insane at the time of the making of the deed or contract, and that the agreement of compromise was beneficial and not injurious to the insane person or his estate. 4. Generally, the conduct and acts of a committee of an insane person, in relation to the estate of such insane person, are subject to the direction, approval or disapproval of the court having jurisdiction of the subject. 5. That the fact that the committee of an insane person is authorized by law to sue and be sued, touching the estate of such insane person, does not, in and of itself, authorize the committee to compromise a suit brought by him, so as to change the nature and condition of the estate of the insane person. 6. It appearing in this case, that L. at the time he made the contract of sale of the lands was sufficiently sane to make the contract, and that the contract was beneficial to his interests, and 1874. January Term. 1874. January Term it not appearing that the contract of sale is invalid, for any cause, or that the agreement of compromise was beneficial to the interest of L., (the insane person), for these reasons alone, a court of equity ought to refuse to decree specific execution of the agreement of compromise, (if it were complete and final on its face), against the personal representative and legal heirs of L. 7. The said agreement of compromise, if it were not otherwise objectionable, is not such a final, completed contract, as a court of equity will enforce, by decree of specific performance. f 8. It appearing that L. had purchased froin T. the larger part o the land sold by him to J. and H. (the plaintiffs in the original bill), and that, at the time of the sale from L. to J. and H. and afterwards, there was a large amount of purchase money due from L. to T., on the land so purchased by L. from T., and that T. had never conveyed the same to L., and that Twas dead, and at his death his purchase money was unpaid, and it not appearing that the legal heirs of T. ever conveyed the land, it was error in the court below to decree the sale of the land, so sold by T. to L. without the personal representative and legal heirs of T. being made parties to the cause and regularly brought before the court by proper process. 9. It was not error in the court below to allow the personal representative and heirs of L. to file a cross-bill, in the original cause of J. and H. aforesaid, asking the court to confirm the original contract of L. with J. and H. for the sale of the land, and to sell the land to pay the unpaid purchase money, due the estate of L. deceased; but the personal representative and legal heirs of said T. deceased, as well as all other parties in interest, should be made parties thereto. An appeal from a decree of the circuit court of Monroe county, by the respondents in a suit in chancery pending in said court, wherein John Hinchman, in his own right and as administrator of William Hinchman, Jr., deceased, Andrew Hinchman, Mary Hinchman, Thomas Johnson and Minerva, his wife, Andrew A. Miller, James Miller, Elizabeth B. Miller, George Miller, Samuel W. Beard, and Sarah, his wife, George W. Poage and Cornelia A., his wife, William B. Johnson and Agnes, his wife, and T. A. George and Mary S., his wife, were complainants, and Lewis Ballard, sheriff of said Monroe county, and as such administrator of Douglas B. Layne, deceased, Ann B. Layne, John J. Paxton and Eliza, his wife, Orville |