5 Or. 518 | Or. | 1875
By the Court,
Upon the first point appellant’s counsel seem to rely with confidence on the case of Cooper v. Sunderland (3 Iowa, 114). In that case an objection was made to a guardian’s sale, under a statute similar to ours, on the ground that it did not appear that the guardian took the oath required by the statute before fixing on the time and place of the sale; and the court says, in passing on the case made: “There is no evidence, either in the record or in the papers, nor is any brought to our knowledge aliunde, that this oath was taken. The guardian makes a report of her sale but does not state it. There is a judgment confirming the sale, but this goes no farther than to say (in allusion to the report), 1 which, having been examined by the court here, and the court having been fully advised of and concerning the premises, it is ordered,’ etc. * * * The above record does not answer the call of the statute.”
It will be seen that there is a material difference between the Iowa case and the one at bar. Here the judgment of confirmation recites that: “And it further appearing to the court that said sale had been legally made and fairly con
In the case of Blackman v. Bauman (28 Wis. 611), the record itself showed affirmatively that the statute had not been complied with, for the oath of the guardian found in the record was made on the day of the sale, and not before fixing on the time and place of the sale, as required.
In the case of Manton v. Purdy et al. (11 Minn. 400), the objection to the sale was founded on an insufficient notice of the sale; and as the notice itself was with the papers and was considered a part of the record, it showed on its face that it did not comply with the statute. The case in 2 Sawyer is similar to the one in 3 Iowa, and in the case in 38 Maine it was one of the agreed facts that no bond had been filed. But the view we have taken of the case makes it unnecessary for us to decide whether the record of the County Court, together with the evidence offered in connection with it, establishes the fact that the guardian did give the bond required by the statute before the sale was made; for we think the whole matter was settled by the Circuit Court in the decree made March 12, 1873.
The court had full and complete jurisdiction of the case and of the parties, and there is no evidence to sustain the allegation of fraud and collusion between the guardian ad litem, in that case, and O. G. Savage. It was insisted that
Decree: That the decree of the court below be reversed and plaintiff’s complaint dismissed.