180 N.W. 18 | N.D. | 1920
This is an action to determine adverse claims to a quarter section of land in Cavalier county. The trial court ren
The complaint is in the usual form, and sets forth that the plaintiff has an estate in fee simple in the premises in controversy and is in possession thereof; and that the defendants claim certain estates or interests in or liens or encumbrances on said property adverse to plaintiff. The prayer for judgment is: That the defendants be required to set forth their claims and that such claims be adjudged null and void; that title be quieted in the plaintiff as to all claims of the defendants ; and that the defendants be forever debarred and enjoined from asserting the same. Ragnhildur Myrdal, Johann Vilhjalmur Myrdal, and Einer Myrdal, in their answer, aver that they are the owners of a three-fourths fee simple estate in the land by reason of (their) being the heirs of one Einar E. Myrdal; and by virtue of the patent for said premises issued by the United States government to “the heirs of Einar E. Myrdal, deceased,” on December 21, 1891. To this answer plaintiff interposed a reply, wherein he averred that, in proceedings had in the county court of Cavalier county, the said defendant Margriet Myrdal was on August 26, 1891, duly appointed guardian of the said above-named three appellants; and that siffisequently it was ordered by the county court of Cavalier county in said proceeding that the land in controversy be awarded to the said Margriet Myrdal, with privilege to sell the same at public or private sale; that said final decree so adjudging was entered on March 7, 1892; that the said Margriet Myrdal did on March 30, 1892, in pursuance of said order, convey said premises to one Frank W. Wilder by warranty deed, which was duly recorded in the office of the l’egister of deeds of Cavalier county, North Dakota, on April 12, 1892; that said Wilder paid to the said Margriet Myrdal the sum of $710 for her share and for the shares of said three appellants in and to said land; that the said land was subsequently sold and conveyed to various parties by instruments of conveyances duly recorded; that the plaintiff purchased the same on December 11, 1914, from the then record owner thereof; that since the purchase by said Wilder on March 30, 1892, said Wilder, and those holding under him or them, have been in possession of said premises and have paid all taxes assessed against the premises. The said reply further averred,
The material facts are undisputed, and may be summarized as follows : In May, 1890, one Einar E. Myrdal and his wife and children moved on the premises in controversy. Myrdal had entered such premises under the United States pre-emption laws. On April 12, 1891, Einar E. Myrdal died, leaving surviving him as his heirs at law his widow, Margriet (now Margriet Grandy), and his three children, the appellants in this case. Shortly- after the death of her husband, Mrs. Myrdal and the children moved to the vicinity of Gardar in Pembina county, some 12 or 15 miles distant from the land in controversy, at which latter place her deceased husband owned a 40-acre tract of land. Judging from her testimony she had little or no faith in the land in controversy. It seems that she had virtually made up her mind to abandon it, and it is very doubtful if she ever would have made final proof thereon if it had not been for Bjorn Bjornson, who apparently had some claim against the deceased, Einar E. Myrdal; and, through his solicitation and assistance, Mrs. Myrdal was induced to make final proof thereon. Bjornson took the matter up with one Blichfelt, who at that time was engaged in the real estate business at Langdon, and induced him (Blichfelt) to advance the necessary moneys to pay the government the purchase price and' the costs and expenses incident to -the final proof. It also appears that these parties, after the final proof had been made, induced Mrs. Myrdal to make application to the county court to be appointed guardian of the three minor children. She was so appointed guardian by order of the county court on August 21, 1891. On December 21, 1891, patent was issued by the United States government, conveying the land to the “heirs of Einar E. Myrdal, deceased.” The petition for the appointment of a guardian was entitled, “In the Matter of the Estate of Einar E. Myrdal, Deceased.” The petition, among other things, averred that said minors were residents of Cavalier county, and “that they have no father living, or other legal guardian residing in the state of North Dakota; that said minors have real estate to the value of about $500” situated in the county of Cavalier. The
“That your petitioner has been duly appointed guardian of the minor children and estate of the late Einar E. Myrdal, and that letters of guardianship have been issued by this honorable Court to your petitioner on the 27th day of August, 1891, as will appear, reference being had to the record in this cause; . . .
“That said deceased left nothing but one real property valued at about five hundred dollars ($500) which is now in the possession of your petitioner;
“That your petitioner and Eagnhildur, Johann, Wilhelm, and Einar Myrdal, minors, of whom the petitioner is guardian, are the only heirs entitled to the estate of said deceased;
“That the property so left by said deceased consists of the following*423 described land, to wit: The southeast quarter (S.E.-J) of section thirty-two (Sec. 32) in township one hundred and fifty-nine (159) and range fifty-eight (58) ;
“That your petitioner has no experience whatever as to farming, and that the land above mentioned can be of no benefit and profit to the heirs, said petitioner being unable to work it herself or to see to its proper management, so as to be of some benefit to the heirs;
“That your petitioner verily believes that the most proper and useful course to follow would be that á final decree be issued giving the above-mentioned property to your petitioner, with privilege to sell the same at public or private sale, or by said petitioner giving a good and proper bond as security in case of sale of said property, for the shares of the above-named minor children.
“Wherefore, your petitioner prays:
“That your petitioner and the minors above mentioned be declared the sole and only heirs of the estate and of said Einar E. Myrdal, deceased ;
“That for the greatest advantage and benefit of said heirs the land above mentioned be sold either at private or public sale or by said guardian giving good security for the share's of her wards in the said property;
“That for the purpose of enabling said petitioner to give a clear title to the buyer of said property, the final decree to be issued by this court be issued to Margriet Myrdal in her own name.”
The county court made the following indorsement on the petition: “The above petition is hereby granted, and a final decree as prayed for is ordered to be issued to Margriet Myrdal, the above-named petitioner, according to the tenor of said petition,” Margriet Myrdal executed an additional guardian’s bond in the sum of $700. The bond was signed by two sureties, and approved by the county court. On the same day, to wit, March 7, 1892, a final decree was entered, whereby it was “ordered, adjudged, and decreed . . . that all and singular the above-described real property be and the same is hereby assigned to and vested in the said Margriet Myrdal, forever, in the following proportions, to wit: The whole of said property, to wit, the S.E.-J section 32, township 159, range 58, in the county of Oavalier, state of North Dakota.” Thereafter, on March.30, 1892, Margriet Myrdal conveyed
The only question which we find is necessary to consider is whether the action is barred by § 8923, Comp. Laws 1913, which reads: “No action for the recovery of any estate sold by a guardian can be maintained by the ward of any person claiming under him, unless it is commenced within three years next after the termination of the guardianship or when a legal disability to sue exists by reason of minority or otherwise at the time when the cause of action accrues within three years next after the removal thereof.”
Appellants contend that they are not barred by § 8923, Comp. Laws 1913, for the following reasons:
(1) That the guardianship of the appellants has not been terminated.
(2) That the statute does not apply because the jurisdictional requirements relating to sales by a guardian were not complied with, and that hence the sale to Wilder was void.
We will consider these contentions in the order stated.
(1) Appellants contend that the guardianship is not terminated, within the meaning of § 8923, supra, until an order is made discharging the guardian. In the support of this contention they cite Gronna v. Goldammer, 26 N. D. 122, 143 N. W. 394, Ann. Cas. 1916A, 165, and United States Fidelity & G. Co. v. Citizens’ State Bank, 36 N. D. 16, L.R.A.1918E, 326, 161 N. W. 562. The cases cited were not actions to recover property sold by a guardian. They were actions upon a guardian’s bond, and involved the construction of a different statute from that before us. The Statute of Limitations involved and sought to be invoked in those cases was § 8922, Comp. Laws 1913, which reads: “No action can be maintained against sureties, or any bond given by a guardian, unless commenced within three years from the discharge or removal of the guardian; but if at the time of such discharge the person entitled to bring such action is under legal disability
While these sections follow each other, and both relate to the limitation of actions, it will be noted that they are couched in quite different language, and relate to wholly different matters. Section 8922 relates to actions on a guardian’s bond. That section makes the “discharge or removal” of the guardian the event which puts the Statute of Limitations embodied in that section into operation. Section '8923 relates to actions to set aside sales made, and recover property sold, by a guardian. That section designates “the termination of the guardianship” as the point of time at which the Statute of Limitations embodied in that section commences to run.
If the legislature intended to say the same thing in each of these statutes, why did it use such widely different language to say it ? The reasoning, and in fact the very language, employed by this court in Gronna v. Goldammer, supra, distinguishes that decision and the decision in United States Fidelity & G. Co. v. Citizen’s State Bank, from the case' at bar, and shows the marked distinction between the two statutes. In the Goldammer decision this court said: “The primary meaning of the word ‘discharge’ certainly embraces the affirmative action of someone. The statute does not say, ‘From the expiration or lapse of the guardianship,’ but uses the words, ‘from the discharge or removal of the guardian.’ It would certainly seem that affirmative action on the part of the court was anticipated. ’ Another reason for holding to this conclusion is that under the authorities, and probably under §§ 8167 and 8271, Rev. Codes 1905 (Comp. Laws 1913, §§ 8805, 8909), no action can be maintained against the sureties prior to an adjudication by the probate court finding a liability.”
Our statutes expressly recognize that a guardianship may be terminated otherwise than by the discharge of the guardian. Thus, § 8920, Comp. Laws 1913, provides: “The marriage of a minor ward terminates the guardianship.” See also Comp. Laws 1913, § 4470. And § 4471, Comp. Laws 1913, provides that if the appointment was made solely because of the ward’s minority, the power of a guardian appointed by a court is superseded by the ward’s attaining his majority..
While, of course, the guardian may, even after the ward attains majority, still have in his possession property belonging to the ward,
(2) But the appellants say that § 8923, supra, is not applicable, for the reason that in this ease there was in fact no sale made by the guardian as such; that the deed given to Wilder was a general warranty deed executed by Margriet Myrdal individually, and not in her representative capacity; that the proceedings which preceded the sale to Wilder were not in conformity with the statutes relative to the sales by guardian; and that such proceedings and sale were wholly void for want of jurisdiction.
It is difficult to lay down precise rules upon the subject of jurisdiction, by which every case can be clearly and certainly determined.
Chief Justice Shaw said: “To have jurisdiction is to have power to inquire into the facts and apply the law.” Hopkins v. Com. 3 Met. 460. Chief Justice Green of New Jersey defined jurisdiction as simply judicial power,—“any power possessed by the tribunal, either affirmative or negative.” Perrine v. Farr, 22 N. J. L. 356. See also Van Fleet, Collateral Attack, § 58.
Rulling Case Law (7 R. C. L. p. 1029) says: “The word 'jurisdiction’ (jus dicere) is a term of large and comprehensive import, and embraces every kind of judicial action, and hence every movement by a court is necessarily the exercise of jurisdiction. In the sense, however, in which the term ordinarily is used, jurisdiction may be concisely stated to be the right to adjudicate concerning the subject-matter in a given case.”
The most approved definition of the term “jurisdiction” is that it is “the power to hear and determine.” 4 Words and Phrases p. 3877. However stated, the term implies the power of the court to exercise some judgment, and make some determination.
“1. The issuance of letters of administration by the probate court of the county where a deceased person resided in his lifetime is conclusive in a collateral action of the regularity of the proceedings resulting in their issuance, unless want of jurisdiction appears affirmatively on the face of the record.
“2. The probate court has jurisdiction over such land. It may rightfully order it sold to pay certain demands. A sale of such land cannot be attacked in a collateral action to quiet title, and on the ground that the probate court improperly ordered it sold. . . .”
In the opinion in the case the court said: “Whether there were facts to warrant a sale in any given case was question which the probate court was obliged to determine, and which that court, and no other, had jurisdiction to determine.” The case was brought before the United States Supreme Court by writ of error. In affirming the decision of the court below the Federal Supreme Court quoted with approval the above quoted language from the Minnesota decision, and held that “the jurisdiction of a state probate court to order the land patented to a deceased homestead entryman who had made final proof before his death, to be sold for the payment of his debts, cannot be attacked collaterally because of the provision of U. S. Rev. Stat. § 2296, that no land acquired under the homestead laws shall, in any event, become liable to the satisfaction of any debt contracted prior to the issuing of the patent.” Syllabus, ¶ 3, Doran v. Kennedy, 59 L. ed. p. 996.
Under our Constitution the county court is vested with “exclusive original jurisdiction in probate and testamentary matter, the appointment of administrators and guardians, the settlement of the accounts
But it cannot be said as a matter of fact that the court did not act. Nor do we believe the actions of the court and of the guardian were such that it can be said as a matter of law that they have not acted, i. e., that their actions were wholly null and void, and that hence the case stands as though they had not acted at all. A guardian had been appointed. The wards had property. The existence of such property was called to the attention of the county court. The guardian asked the -court permission to dispose of that property. The court in effect said to the guardian, I set the property over to you so as to enable you to convey it when you find a purchaser. I also require that you furnish a bond to insure that the wards will receive their shares of the purchase
Many of the states have statutes somewhat similar to § 8923, supra. There are many adjudicated cases wherein such statutes have been construed. No good purpose would be accomplished by discussing the statutes of other states, or the decisions construing them. Many of the decisions are collated in a note in 8 L.R.A.(N.S.) pages 354 et seq. We are concerned alone with our own statute, which says that “no action for the recovery of any property sold by a guardian can be maintained . . . unless it is commenced within three years next after the termination of the guardianship.” The operation of the statute manifestly is not limited to valid sales. Such sales do not need the protection of such a statute. The statute was intended to apply in certain cases where sales had been made, and where, on account of irregularities, the sale would-be subject to attack unless the bar of the statute was interposed. Upon the actual facts -of the case before us, we are of the opinion that the bar of this statute is effectual. The guardian of the appellants unquestionably sold their property. She sold it in the manner the county court had said she might sell it. It is the avowed purpose of the appellants to recover such property in this action. For reasons stated above we believe that their cause of action is barred by the statute. The judgment appealed from must therefore be affirmed. It is so ordered.