83 P. 782 | Or. | 1905
delivered the opinion of the court.-
This is an action of ejectment to recover the possession of certain real property in Morrow County. The only question raised is as to the validity of a.guardian’s sale of plaintiffs’ interest in the land. The sale was made December 14,1889, by the guardian to the defendant at public auction,
“Such guardian shall, before fixing on the time and place of sale, take and subscribe an oath, before the county judge, or some other officer competent to administer the same, in substance as follows : That in disposing of the estate which he is licensed to sell, he will use his best judgment in fixing the time and place of sale, and that he will exert his utmost endeavors to dispose of the same in such manner as will be most for the advantage of all persons interested therein.”
And Section 5611 declares:
“In case of an action relating to any estate sold by a guardian under the provisions of this chapter, in which the ward or any person claiming under him shall contest the validity of the sale, the same shall not be avoided on account of any irregularity in the proceedings: Provided, it shall appear (1) that the guardian was licensed to make the sale by a county court of competent jurisdiction ; (2) that he gave a bond that was approved by the county judge; (3) that he took the oath prescribed in this chapter; (4) that he gave notice of the time and place of sale as prescribed by law; and (5) that the premises were sold accordingly at public auction, and are held by one who purchased them in good faith.”
The selection of the time and place of sale by a guardian in advance of taking the prescribed oath is, under the decisions construing similar statutes, fatal to the purchaser’s title: Freeman, Void Judicial Sales, § 22 ; Gager v. Henry,
“All sales by * * guardians of their wards’ real property in this State to purchasers for a valuable consideration, which has been paid by such purchasers to such guardians or their successors in good faith, and such sales shall not have been set aside by the county or probate court, but shall have been confirmed or acquiesced in by such county or probate court, shall be sufficient to sustain a * * guardian’s deed to such purchaser for such real property; * * and all irregularities in obtaining the order of the court for such sale, and all irregularities in making or conducting the same by such * * guardian, shall be disregarded”: Laws 1899, p. 64, § 3.
Now, the taking by a guardian of an oath after obtaining a license for the sale of his ward’s property, and before fixing the time and place of sale, was a matter which the legislature might have dispensed with entirely in the first instance. It did not affect the jurisdiction of the court to license or confirm the sale, or the guardian to make it, but was merely a matter of procedure. It was therefore within the power of the legislature to validate by subsequent act a departure from the prescribed method. It could have authorized the sale in the first instance without requiring the oath, and so could render a failure to take it immaterial by subsequent law. This is the effect and construction given the curative act now under consideration by this court in McCulloch v. Estes, 20 Or. 349 (25 Pac. 724)., That was an action by a ward to recover lands sold by his guardian. The objection to the validity of the sale was that the guardian did not give “notice of the time and place of sale as prescribed by law” — a matter made as important and essential by Section 5611 as the taking of the oath.
It follows that the judgment must be affirmed, and it is so ordered. • Affirmed.