56 Minn. 358 | Minn. | 1894
The learned counsel has made, as he always does, all out of his case that there is in it.
But after careful examination we are unable to see that the legal status of the case is at all different from what it was when here on the former appeal. 50 Minn. 87, (52 N. W. 273.)
The only facts established on the last trial, not established on the first, that are claimed to be material are — First, that under the laws of Nebraska a guardian of a minor has authority to sell the personal property of his ward without any order of court authorizing the sale; and, second, that after this land was entered, but while the plaintiff was still a minor, the guardian made her final account to the court, which was confirmed, and she discharged from her guardianship; and that in the amount with which she charged herself in her account was included the $100 which she received from the person to whom she delivered the certificate of the minor’s right to enter an additional homestead, the two blank powers of attorney, and the order of the court.
It is claimed that the effect of the first of these facts was to prove a sale of the right of entry as personal property.
But, as was said on the former appeal, “if we are to treat the right to enter the additional lands as personal property, and the transaction as an attempt by the guardian to assign it as personal property, then wTe confront the order of the county judge who appointed the guardian, and who must be assumed to have had the direction and control of her in the discharge of her duties as guardian, which in effect prohibited her assigning the right, or doing anything with it except causing the land to be selected and located under it, and then to be sold.”
Conceding that the guardian might, in the absence of any order of court on the subject, have sold the right as personal property, yet the minor is the ward of the court, and, in the management and
And right here lies the vice in the argument of counsel. It all proceeds upon the assumption that there had been a valid sale by the guardian of the right of entry as personal property. If this were so, there might be some chance to apply the equitable doctrines which he invokes, but, with this wanting, it seems to us that his. whole argument falls.
The effect claimed for the second fact is that it amounted to a confirmation or ratification by the court of the act of the guardian in selling the right of entry, instead of causing the entry to be made in the name of the minor, as directed in the original order. But the foundation is too small for the superstructure. There is not a particle of evidence that the court knew that the guardian had disobeyed the order, or even knew the source whence the money came with wMch the guardian charged herself in her account.
There are some features of the case wMch might incline a court to view the defendant’s position as favorably as the rules of law would permit, but we do not see any legal principles upon which the decision of the trial court can be affirmed.
Judgment reversed.
(Opinion published 57 N. W. Rep. 1063.)