178 Ky. 515 | Ky. Ct. App. | 1917
Opinion op the Court by
Affirming*.
W. B. Weaks and J. P. Weaks, both, of whom are now dead, were joint owners of each of seven lots, in the city of Paducah. The lots adjoined and were unimproved.' Six of the lots are each fifty feet in width, while the other one is fifty-two feet, and each has a depth of one hundred and fifty-two feet. It does not certainly appear, that the lots have a frontage on any established street, but, at one end, they approach an alleyway. At the death of W. B. Weaks, his interest in the lands was inherited by his children, Cornelia E. Weaks and William W. Weaks, subject to a right of dower of their mother, Willie W. Weaks. At the death of J. P. Weaks, his interest in the lots was inherited by his children, Mable C. Weaks, Marie Antoinette Weaks, and Beulah Weaks,-subject
The proceeding was ex parte, but the petition, in substance, averred, that Willie W. Weaks, had been duly appointed and qualified as the statutory guardian of Cornelia E. and William C. Weaks, by and in the county court of Christian county, Kentucky, which county was alleged to be that of their residence, and a certified copy, of the orders of that court; showing the appointment and qualification, was filed with the petition. It was, also, averred, that Nettie L. Doss was the duly qualified and acting- guardian of Marie'Antoinette and Beulah Weaks;, that she. had been appointed such by the county court of ' Wilson county, in the state of Tennessee, wherein they resided, and had duly qualified in that court, and that she had, upon a petition to the county court of McCracken county, Kentucky, wherein the lots are situated, been authorized, by an order of that court, to prosecute this action ás. the guardian of Marie Antoinette and Beulah’ Weaks,. under the appointment of the county court in Tennessee. The title papers, under which the property ’ was,held by the ancestors of the petitioners, were filed with.the petition. A copy of the records of the county court,-in Tennessee, showing the appointment and qualification of Nettie L. Doss, as the guardian of Mario’
(1) The court adjudged, that the sale be set aside and vacated upon two grounds, one of which was, that the judgment directing the sale was void, because the court, at the time the judgment was rendered, did not have jurisdiction of the infants, Marie Antoinette and Beulah Weaks, nor of their guardian, by whom the two infants wére prosecuting their suit, as there was no competent evidence, on file at the rendition of the judgment, showing that the guardian had been duly appointed and qualified, or had been authorized by a court in this state to prosecute the action, as provided by section 2041, Kentucky Statutes, supra. Of course, if the court, which renders a judgment, is without jurisdiction to do so, the. judgment and all proceedings under it are void. However, pending the exceptions, the appellants, who were the
“It is substantially stated in the petition and answer that Carter II. Harrison, the father of the two infant defendants, was, under the laws of the state of Illinois, appointed and qualified as their guardian; and although the proper record evidence of his appointment and qualification was not filed, in this case, until after the sale of the property to appellants, still the fact being established, the defect in their title, which might otherwise have existed, has been to that extent cured, and they have now no right to complain on that account. ’ ’
In Henning v. Barringer, 10 R. 674, the mother was statutory guardian of all her children, except one, and sued, alleging'that she was the guardian of all, and, also, as their next friend, but failed to file the affidavit required by section 37, Civil Code, which is required to be done, where one sues as a next friend. After the sale, but before confirmation of it, she was appointed statutory guardian for the one for which she had not been theretofore appointed. The purchasers of the land were ex-ceptors to the report of the sale, upon the ground that the above irregularities made the title, they would receive, defective. The court, after saying, that, if all the parties were before the court, the title was good, added:
*519 “They"were all before the court, because in this particular state of case, an infant may bring the suit for the sale, and, under the code, can sue by his guardian or next friend, and that he sued both by his guardian and next friend would only be the subject of special demurrer, and could afford them no ground for reversal, unless it appeared that the rights of the infant had been prejudiced by the proceedings.”
Referring to the failure to file the affidavit, as a ground for claiming that the mother had no right to sue, the court said:
“The affidavit is to the effect that there is no guardian —no one else to sue — but in this particular, when the fact is made to appear of the right to sue, before the purchaser acquires the title, it is not a jurisdictional fact, such as would destroy the judgment and render it void, but would be held bad on demurrer at the instance of the parties to the action.”
The right of the two infant wards of Nettie L. Doss existed in this action to sue by her as their statutory guardian, when the action was instituted, and hence the infants, as well as the guardian, were before the court upon their petition, and the judgment was not void. When, before the sale was confirmed, the ¡necessary evidences were filed to assure the purchaser a good title, under the above mentioned cases, the court was in error, in holding, that the judgment for the sale of the lands was void, and an exception based upon that ground should have been overruled. Webb, et al. v. Webb’s Guardian, 177 Ky. 152. It should be added, that a purchaser, at a sale of infant’s real estate, can not be required to accept a deed and pay the price until the evidences, of the right of the guardian to institute and maintain the suit, appear in the record, but where the right of the guardian to maintain the suit existed, and before the confirmation of the sale the proper evidences of such right appeared in the record, the purchaser cannot complain. There does not appear to be any good reason why the guardian and his wards should complain of a judgment of the court, which they have sought, when the right of the guardian to maintain the action existed, and before a sale of the property is confirmed, the evidences of such right appear in the record, and the nature of the proceeding is such as to give the court jurisdiction of the parties preceding the rendition of the judgment.
In 24 Cyc. 29, the general'rule is declared to be as follows:
“No person can become a purchaser at a judicial sale, who has a duty to perform in reference thereto, which is inconsistent with the character of a purchaser, or who is so connected with the sale, that his individual interest, as a purchaser, might be inconsistent with his duty. Thus, the person who makes, a judicial sale may not become the purchaser, either directly or indifect'ly. Neither*521 can the judge, who ordered the sale, become the purchaser' or be interested as a purchaser; . .
In 16 R. C. L. 107, the rule is declared to be as follows :
“A judge of a court having some duty to perform in ordering, conducting or confirming a judicial sale therein, the performance of which may conflict with the interests acquired by a purchaser at the sale, occupies a position of a trustee, and a purchase by him is assailable, as in the case of.any other trustee.”
The principle, upon which the above doctrine is asserted, is, that the judge, who orders, conducts or confirms a judicial sale, is an agent designated by law, or in other words a trustee, for the purpose of effecting the sále of an infant’s real estate, and when the general doctrine of agency or trusteeship is applied to him, that it rénders him incapable of purchasing the property, which is by law confided to his discretion as to whether-a sale of it shall be made; and this principle applies to an agent of any kind, because the doctrine is universal, that an agent for the sale of his principal’s property cannot sell it to himself. Where an agency is created by law-for the sale of the property of those, who are incapable of giv-. ing consent or contracting sales, or where the property is to be sold without the consent of the owner, the agents, whom the law designates to perform the duties of making such sales, cannot be purchasers at such sales. Trustees, who make sales of trust estates, cannot be purchasers, except for the benefit of the cestui que trustent or else for the protection of themselves. Guardians, who make sales of their ward’s estates, administrators and executors, who make sales of decedent’s estates, likewise, fall under the inhibition of this' rule. This rule is founded more upon general principles than upon the circumstances of any particular case, and as said in Stapp v. Toler, 3 Bibb 450, the doctrine “rests upon this, that the purchase is not permitted, in any case, however honest the circumstances, the general interest of justice requiring it to be destroyed, in every instance, as no court is competent to the examination and ascertainment of the truth in much the greater number of cases.” The courts are the agencies provided by law for the sales of real property, the owners of which, from infancy or infirmity of mind, are incapable of making contracts for sales for themselves, and they are, also, the agents provided-by law for enforced sales of property of 'debtors in satis
“Officers, whose powers are not merely persuasive, but coercive, ex parte and arbitrary, should be held to strict impartiality, fidelity and integrity in the discharge-of their trust. All temptation to make private gain or to take unfair advantage, ’directly or indirectly, should be removed. The most effectual way to do so is to declare all such transactions conclusively invalid.”
In Bagby v. Eversole, 6 R. 365, it was said:
“A commissioner in chancery cannot become a purchaser at his own sale or reap any benefit from a purchase by another, under an agreement that he is to be regarded as a joint purchaser. Such contracts are against, public policy.”
To the same effect is Penn. v. Rhoads, etc., 124 Ky. 798; Sears v. Collie, 148 Ky. 144; 24 Cyc. 29. All such, purchases are at least voidable and will be set aside upon exceptions. It is true, that this court has made a distinction between a purchase, at a judicial sale, by the-commissioner, who makes the sale and, a purchase by an appraiser of the property at such sale, who may be, in a. way, considered one of the agents in effecting a judicial sale.’ It was held in Barlow v. MeClintock, 10 R. 894, and in Ison v. Kinnaird, 13 R. 569, that an appraiser, at. a judicial sale, might become a purchaser, and the sale would not be vacated, unless it could be shown by evi
Thus, it appears, that if, in the instant case, the-commissioner, who merely executed the judgment, as the agent of the court, had, either directly or indirectly, become the purchaser of the lands, there would be no difficulty in holding, either upon principle or according to precedent, that the exceptions to the sale on account ef his purchase should he sustained, hut, it is contended, that, if the judge of the court, who made and caused to be entered the judgment, under which the commissioner acted, should become the purchaser, at the sale, under the judgment, his purchase should be sustained, when it should be ratified by some other judge than himself. The adjudications, in other jurisdictions, growing out of the purchase, at judicial sales, by the judge, who made the decree, have been instances, in which the judge was the purchaser, in person or through some other person, and thereafter confirmed the report of sale, and sales under
“A probate judge should not be permitted to purchase lands at.a sale ordered by himself, for he might be tempted to order a sale to the prejudice of the persons interested in the estate.”
In Walton, et al., v. Terry, et al., Harr (Mich.) 259, a judge.made an order for a sale of infants’ property by their guardian, and then became interested as a purchaser through another. The sale was held to be void, and in discussing the ground upon which the decision was rested, the court said:
“It is placed upon the ground of the disability to purchase, arising from, the office which the purchaser held. And the case quoted by Chancellor Kent, on that occasion, extends the disability to guardians, judicial officers, and all other persons, who, in any respect, as agents, had a concern in the disposition and sale of the property of others, whether the sale was public or private, judicial or otherwise.”
The circuit court, as above stated, is the agency provided by law, in which the necessary proceedings must, be had and steps taken to effectuate the sale of infant’s-real estate; the judge of the court -is the person designated by law to order such a sale, and! to have supervision over its conduct and confirmation; it is his duty to-see that the interests of the infants are safeguarded and protected; the sales in such cases are made by the court’ and its commissioner is its organ for that purpose, and the personnel of the commissioner is designated by the-judge of the court; the bids are propositions for a purchase made to the court; the judge is the judicial officer of the court and is invested with' the duties of a trüstée in relation to the interests of the infants, and, although he declines to preside, upon the motion to confirm the-sale made to him, under a decree rendered by him, he,, at least, has had the ordering of the sale and is so connected with the sale, that his individual interest, as a purchaser, would be inconsistent with his duties, or might be so, and in such states of case the sale would be declared
The judgment is therefore affirmed.