1. The controlling question in this case is whether the judge of the superior court, as chancellor, has power or jurisdiction, on the petition of the executor of a will, in which legatees are parties and the minor legatees represented by the said executor as guardian ad litem, to order the sale of the real estate of such infants, at chambers. In this case, the order was passed in term, but there was no regular bill in equity filed and served acccording to law,-though a jury passed on the necessity and propriety of the sale. So that the case may be considered as one at chambers, and the question is, had the judge of the superior court this jurisdictional power at chambers ? If he had jurisdiction, what was done, though irregular, was not void, and purchasers for value at the sale would be protected, and as this is a suit brought by the infants, on arriving at age, to set aside the sale and recover the land, this question is vital. It seems to us clear that the act of 1866 (acts of 1865-6, p. 221), Code, §4214, in connection with sections 4221, 4222, 4223, 4224, of the Code, give the jurisdiction.
*664The act of 1866 was passed just after the war, when property had been swept away, and the struggle for bread and clothes to sustain life was the issue in all families whose heads had stood at the hearthstones of their fathers, and widowhood and orphanage were wailing in distress in every southern community. It is very broad and general in the sweep of its provisions, and leaves much to the discretion of judges of the superior courts. It enacts, “When for any reason' already existing, or to exist, it becomes impossible to carry out any last will and testament, in whole or in part, the judges of the superior court shall have power to render at chambers, during vacation, any decree that may be necessary and legal in the premises.” It is clear that the judges are to determine on the impossibility of carrying out the will, and the validity of the reason for action; otherwise, every decree rendered could be reopened and re-argued and reviewed on the issues of the validity of such reasons and the impossibility to carry out the will. But even if we would review those questions now, it seems to us the reasons were valid. It was impossible to carry out the will and preserve the land for the children, if they could not be supported, so as to enter upon and enjoy it. The petition alleged, and the judge concluded that, owing to the disastrous effects of the war and the total change of productiveness of landed property, a support could not be realized if the will were carried out, and thus it was impossible to carry it out. That it would be legal, in such a case, to decree a sale, see Rakestraw, executrix; vs. Rakestraw et al., from Gwinnett county, 70 Ga., 806.
True, there are certain provisos to the act. In respect to the provision that all parties consent in writing, we think the petition shows it, as the infants were represented by the executor, who was guardian ad litem ; and all, therefore, agreed in writing and assented to the facts, making no issue of fact. The judge, it is true, submitted to the jury the necessity of the sale under the circumstances, but *665this was only to satisfy his own judicial mind of that necessity, and was all unnecessary, as all parties agreed to the facts by signing the petition individually or representatively.
The executor was appointed guardian ad litem, and it is insisted that this appointment rendered void the entire proceeding. We cannot think so. There was no' conflict between him and the minors; no interest of his was adverse to theirs; and if so, whilst it would have been better to have appointed another, it would hardly make the whole proceeding absolutely void. See 59 Ga., 729. So'thattheactof 1866 would seem to give jurisdiction of cases of the class to which this evidently belongs.
But when we turn to section's 4221 et seq., all doubt ought to vanish. It enacts, “ All proceedings ex parte, or in the execution of the protective powers of chancery over trust estates, or the estates of the wards of chancery, may be presented to the court by petition only, and such proceedings be had therein as the necessity of each cause shall demand.” In one sense, this is a trust estate, because the will is a great trust confided to the executor, in confidence that he will execute that trust for the benefit of the legatees, and perhaps jurisdiction, under this section, might, by a broad construction of this remedial statute, be found; but when the other clause is considered—“ or the estates of the wards of chancery ”—can there be any rational doubt of the jurisdiction of this case ?
The very minute this petition came before this chancellor and disclosed the fact that the land of infants was involved, his wards were before him, and the case was concerning “ an estate of the wards of chancery.” The case was made where these wards were suffering or likely to suffer; where their property must be changed, so as to realize for them the necessities of life, and it was necessary that his protective powers be exercised to make such decree as would relieve that necessity, and at the same time protect the estate by looking to. the re-investment *666and preservation of the fund. Again, the “ proceedings ” to “ be had therein ” are to be such “ as the necessity of each case may demand.” Of that necessity he is the judge and the only judge. If the infant be not safe in his breast, where shall he look for help ? If chancery protect not her wards, what guardian, what law, can protect them? I had rather confide an infant to the custody and care of a n honest judge than to any jury ever sworn to find facts and apply law.
Section 4222, which is the next, gives power to act at chambers, on the single condition that the record be preserved by “ always transmitting the entire proceedings to the clerk, to be entered on the minutes or other records of the court.”
And section 4224 provides, “If minors are interested, and they have no guardians, guardians ad litem must be appointed and notified, before the case proceeds.” The executor was appointed in this case, and as to the legality or propriety and effect of that appointment, we have already considered.
See, on the subject of these jurisdictional powers at chambers, Iverson, trustee, et al. vs. Saulsbury, trustee, et al., 65 Ga., 124, and cases following that, down to the present term in Weems and wife vs. Goiter.
2. We think, therefore, that, without more, these purchasers for value at the sale under this decree, would be protected in equity, or at least, that equity would decline to assist others, even infants, to disturb a title so acquired; but in the case at bar, it appears that the decree provided that the money acquired from the sale be turned over to the regular guardian of these infants; that the guardian sued for it, and it was turned over to her by the court of ordinary, at the end of much litigation on bills in equity between the guardian and executor, and a proahein ami of the infants and the executor, in which this decree was set up and elied upon by these representatives of these minors. Surely these infants, by their representatives, thus acquir*667ing this fund under this decree, -would be estopped from denying the validity of the decree.. Is not the validity of it res adjudicate so far as the guardian or other legal rep. resentative of theirs, in recognizing it and acquiring funds under it, are concerned; and if res adjudicata as to these their legal representatives in court, is it not so as to them ?
The distinguished counsel for defendant in error seemed to concede, and must concede, that had the issue of its validity been directly made, it would have been res adjudicata as to the infants, it being so as to the guardian. But was not the validity, the binding form of that decree, in issue, to all intents and purposes, in the cases in which these infants were represented ? We think so. In fact, it appears to have been put in issue by demurrer.
But where one sues for and recovers under a judgment or decree, and acquires money or property thereby, in litigation with others for the fund proceeding from that decree, does he not necessarily put the validity of that decree in issue ? And will he be permitted to attack it for want of iurisdiction afterwards in a contest with the very people who paid the money which was recovered under the decree ? We think not. Therefore, as these plaintiffs, through their guardians, got the money which defendants paid for this land in litigation, during which the validity of this decree was necessarily in issue, we think, being fully represented in court on that issue at the time, it is too late now to question its validity, and equity will estop them from doing so, because, through their guardian, they acquired property, money, under it, and may not assail it; certainly not without refunding the principal and interest acquired under the decree.
3. There is no doubt the defendants are innocent purchasers for value to the full worth of this property, when bought,—that they acted ionafi le. Against such defendant. equity is loth to interfere; and though ever tender to infants, equity will turn even them over to guardians *668and their sureties, rather than disturb such honest, innocent, Iona fide parties in actual possession, and dispossess them of that for which they paid the last cent it was worth.
4. The fact that the judge proceeded in term to consider the petition, and called in the jury to pass on the necessity of the sale, cannot affect the proceeding so as to render it less effectual than at chambers. On the contrary, it was opeD, public, known to all the world, in full view of all the county, and really differed from a regular decree in equity only in the respects that it was founded, not on bill but on petition, was not filed so long a time before court, was not regularly served before court; but all parties .appeared, and the case was tried in other respects, as other regular bills. . If this .differs in legal effect from a hearing in chambers, it.differs only to strengthen the decree.
5. A new trial being granted, the decree in the case at bar falls, and it becomes unnecessary to pass upon the exceptions to the decree, or the motion to dismiss the writ of error founded on a separate bill of exceptions, as to the decree.
As it was unnecessary, to say the least, to bring the exceptions to the decree in a sepai-ate bill of exceptions, the plaintiff in error must pay the costs of that second bill.
6. In respect to other grounds to dismiss, it is enpugh to say that the motion founded on want of parties is healed by the amendment from the record, they being parties plaintiffs in error, and no service being necessary.
7. The burden is on the defendant in error, to show that the clerk was delayed by counsel for plaintiff in error, or by the plaintiff’s own conduct so as to take the case out of the act of 1877, providing for cases reaching this court after return day.
8. Where a motion for a new trial goes over to another regular term, and no action is had upon it, it will stand continued jüst -as any other case in the court below. As either party can call it up, if neither does, both a”e at fault, it will be considered as passed over by consent, and the writ *669of error will not be dismissed for that reason, nor will the motion be adjudged as too late.
Judgment reversed.