117 F. 105 | 8th Cir. | 1902
This is a bill in equity, exhibited by Paul Beezley, a complainant in possession, to quiet the title to 160 acres of land in the state of Nebraska. In the year 1888 the defendant, Ada E. Phillips, was a minor, and was the owner of this real estate. The title of the complainant is founded upon a sale made by the guardian of the defendant to George E. Gilbert on March 24, 1888, pursuant to a license issued by the district court of Franklin county in the state of Nebraska on December 16, 1887. The question at issue is whether or not that court ever acquired jurisdiction to authorize this sale. The statutes of Nebraska empowered the district court to license a guardian to sell the land of his ward for two purposes: (1) To maintain or educate the ward, or to invest the proceeds of the sale in productive stock or interest-bearing securities (Comp. St. Neb. 1901, c. 23, §§ 42, 43); and (2) to pay the debts of the ward and the charges of managing her estate (Id. c. 23, § 105). It provided two different and independent courses of proceeding for sales for these two purposes. Chapter 23, §§ 42-66, and §§ 105-122 and 67-82. Counsel for the complainant concede that, if the sale in question was for the purpose of paying the debts of the ward, the district court acquired no jurisdiction to grant the license, because the statutory notice of the hearing upon the petition was not given. But they insist that, although the petition was ample to warrant the issue of a license to pay debts, it was also sufficient to invoke the jurisdiction of the court to authorize a sale for the maintenance of the ward and the investment of the surplus'proceeds, and that, if this position is well taken, the sale was valid, although no notice was given to the ward, for the reason that the proceeding by a guardian to sell the real estate of his ward for her maintenance or for investment has been held by the supreme court of Nebraska to be a proceeding by the minor herself, the validity of which she is estopped from challenging on the ground that she received no notice of it, for the reason that she instituted and promoted it herself. Hubermann v. Evans, 46 Neb. 784, 793, 65 N. W. 1045; Myers v. McGavock, 39 Neb. 843, 861, 58 N. W. 522, 42 Am. St. Rep. 627. Conceding, without deciding, that the fact that the petition for the license to sell the real estate contains sufficient allegations to warrant a sale of it to pay debts is immaterial, and that those averments are mere surplusage, provided it also duly invoked the jurisdiction of the district court, and that court exercised
Other objections to the title of the complainant have been presented and argued, but that which has already been considered is fatal to his title, and is decisive of this case. No good purpose would be served by the prolongation of this opinion to consider and discuss other questions.
The decree below must be affirmed, and it is so ordered.