Hamiel v. Donnelly, 75 Iowa 93

Hamiel v. Donnelly

75 Iowa 93 | Iowa | 1888

Rothrock, J.

— After the land was sold at guardian’s sale, and the deed made and approved by the court, the plaintiffs’ guardian died insolvent. It appears that the guardian originally purchased the land from one Elliot, and caused the conveyance thereof to be made to the plaintiffs, who were his minor sons, and who lived *95with him to the time of his death. It further appears that the consideration received from Long for the purchase at guardian’s sale was not money, but a farm of one hundred and sixty acres in Cedar county, and that the conveyance of the land in controversy to the plaintiffs was a gift to them. It will be observed that this is a collateral attack made upon the order of sale, and the sale and deed made pursuant thereto. Bunce v. Bunce, 59 Iowa, 533.

1. Guardian: sale of wards land: validity neglect to file additional bond I. The first point made by counsel for appellants is that the sale and deed were and are absolutely void, because the guardian did 11015 give the additional bond required by the order of the court and by section 2261 0f {¡he Code. It is sufficient to say of this objection that in Bunce v. Bunce, supra, this court determined that the failure to give a sale-bond was not such a defect in the proceedings as to authorize a collateral attack upon the title. It is said in that case that “in the absence of a sale-bond it would doubtless be error to approve the sale; but where the jurisdiction attached, and the sale has been approved, it cannot, we think, be successfully attacked in a collateral proceeding by alleging the want of a sale-bond.” We discover no good reason for disturbing the rule above announced.

2. _: _: _: petition not sworn to defective notice: bond approved by clerk. II. It is further claimed that the proceedings were void because the petition for the order to sell was not sworn to, and the notice of the application for the sale was served on the plaintiffs on the fourteenth day of August, 1887, and the guardian was not appointed until three days afterwards. No objection is made to the form of the notice, nor to the manner of service. It does not appear when the application for the appointment of the guardian was made. The circuit court, with the whole record before it, determined that due and legal service of the pending of the application had been made upon the said minors. It was therefore not a case of non-notice, but the same was probably served before it should have been. Under these circumstances, it is well *96settled in this state tliat the judgment or proceeding is not void for want of jurisdiction of the person. Shawhan v. Loffer, 24 Iowa, 228; Bunce v. Bunce, supra, and cases there cited. In regard to the omission to verify the petition, it is scarcely necessary to say that the defect is in no sense jurisdictional, and the same may be said of the objection that the bond given by the guardian was approved by the clerk of the court in vacation, and not by thé court. We think the decree of the district court is correct, and it is

Aeeirmed.