Boyles v. Boyles

37 Iowa 592 | Iowa | 1873

Beck, Ch. J.

The questions raised by the demurrer, which .was sustained by the district court, are these: 1. Did the court, in the absence of the notice to the plaintiff, required by the statute, acquire jurisdiction in the case. 2. Is the action barred under section 1356 of the Code of 1851 (Rev., § 2388), which provides that “No action for the recovery of any real estate sold by an executor can be sustained by any person claiming under the deceased, unless brought within five years next after the sale.”

The facts of the case are identical with those in Good v. Norly, 28 Iowa, 188, the administrator’s sale in both cases having been made without the notice required by law, and the statutes applicable to each are the same. The very questions both as to the jurisdiction of the court and the validity of the sale, and deed made in pursuance of the proceedings in the probate court, as well as to the limitation of the action under the section above quoted, were before this court in that case. They were thoroughly, considered and fully discussed, and the court was equally divided upon them. Mr. Justice Cole concurred with me in holding that the notice required by the statute is necessary to confer jurisdiction, and without it the sale and deed are void, and that the limitation provided for by the statute (§ 1356 of'the Code of 1851), which is continued by the Revision, does not apply to cases where there was no valid sale, for want of jurisdiction in the court ordering it. The other justices that at the time occupied seats upon the bench, held differently upon the last question and were of the opinion that the limitation provided by the statute applied to cases like this. I am unable to add any thing to what I said in my opinion in that case. A re-examination of the questions has not changed my views, nor have I obtained any new light on the subject. Mr. Justice Oole adheres to the same views, and •the other justices now sitting with us concur in them. The doctrines of the opinion announced by me in Good v. Norley must therefore be considered as the law of this ease. It is quite unnecessary to repeat them or the arguments upon which they are supported.

The demurrer to the petition was erroneously sustained by the district court. The petition shows that the probate court had no jurisdiction on account of want of notice; the sale and deed were therefore void. The limitation provided in the section of the Code of 1851 above quoted, does not bar plaintiff’s action. Neither is she barred by the general statute, for the action was commenced within ohe year after she attained her majority. Rev., § 2747. The judgment of the district court is reversed and the cause remanded for proper proceedings not inconsistent with this opinion.

Reversed.