43 Ill. 18 | Ill. | 1867
delivered the opinion of the Court:
This is a writ of error, prosecuted hy Elizabeth Campbell, upon a decree of the Circuit Court of Adams county, rendered in 1851, on the petition of her guardian for leave to sell certain real estate for her support and education. Waiving the question as to whether a writ of error will lie to a proceeding of this kind, we will dispose of the case on the errors assigned, as this will save parties future litigation and expense.
The first error assigned is, that it does not appear that Amy Harmon ever qualified as guardian. There was an exhibit filed with the bill showing the order of the .prohate court appointing her as guardian, and reciting that she had filed her bond. It is objected that the record should further show the bond was in proper form, and for the proper amount, but the Circuit Court may properly presume, in an application of this kind, that the bond mentioned in the order of the probate court was such as the law requires.
The second error assigned is, that sufficient notice of the application for leave to sell was not given. A notice signed in the name of the guardian, by her attorney, is in the record, together with an affidavit of the attorney showing that he posted it in the manner required by law, and the court, in the order of sale, recites that the notice had been given. The -attorney was undoubtedly a competent person to post the notice and a competent person to prove it, and the notice itself was in due form.
The. third assignment of errors is, that there was no evidence upon which a decree could be based. The case was referred to the master to take proof “ and report the facts.” He reported that the facts stated in the petition were proved to be true. The material facts stated in the petition were, that the infant had no personal property, and had never had any, and no real estate paying an income sufficient for her support and education, and that she then was, and had for some time been, dependent on her guardian for support. It further appeared from the certified copy of the order of the probate court appointing the guardian, which order was made an exhibit to the petition, that the infant, at that time, was six years of age. These facts, appearing by the report of the master, justified the court in making the order of sale. It was not necessary that he should report the evidence. It was sufficient to report the facts proven by the evidence produced before him. McClay v. Norris, 4 Gilm. 370 ; Brockman v. Aulger, 12 Ill. 277. It is true, it would have been the better practice if he had specifically reported the facts proven, instead of reporting that the facts stated in the petition had been proven to be true, but in proceedings of this character, at that day, such a mode of making a master’s report was not uncommon, and as the objection goes rather to the form than the substance, we are not inclined to reverse decrees on this ground, many years after they have been rendered, and thereby jeopardize titles acquired in good faith under the sanction of judicial sales. While courts will be very ready to furnish ample redress to infants who have been injured by fraudulent practices on the part of their guar- dian, yet, where no indications of fraud appear, and the objec- tions taken to the proceedings are of a technical and formal character, the importance of protecting titles acquired under the decrees of court is entitled to much consideration. This has been recognized by all courts, and it is more especially true in this State, where the rapid rise in the value of real estate furnishes a constant inducement to explore ancient records for the purpose of discovering
technical defects. The fourth error assigned is, that the answer of the guardian ad litem, was improper. This was wholly immaterial, as the decree was not pronounced upon any admissions contained in his answer. In proceedings of this character, it was held in Smith v. Race, 27 Ill. 390, that the infants need not be made- parties, and that the appointment of a guardian ad litem
was- unnecessary. The fifth and sixth errors assigned are substantially like
the third. The seventh is, that the decree fixed no day for the sale. The statute was not intended to require the court to fix the precise day or hour of sale. It is sufficient if the court in its order fixes certain reasonable limits, both a&to the day and the hour, within which the sale shall be held',, requiring the guar- dian to give due notice. The guardian may thus exercise some discretion in a mode favorable to the-ward’s- interests. In the present ease, the time fixed was between the date of the decree and the next term of the court, and between the hours of nine in the forenoon and four in the afternoon, the guardian first giving three weeks’ notice by publication in a newspaper of the time, place and terms of said sale. This we think sufficient. The other assignments of error- are not referred'to in the argu- ment, and we find in the foregoing no ground for reversing
the decree.
