Hartley v. Croze

38 Minn. 325 | Minn. | 1888

Dickinson, J.¹

By chapter 57, Laws 1871, (Gen. St. 1878, c. 57, §§ 54 et seq.,) it was enacted that “whenever a sale of real estate, or any interest therein, has heretofore been made by any administrator, executor, or guardian in good faith, and the purchase-money in fact paid, and any defects or irregularities have occurred in proceedings touching such sale which did not render such sale absolutely void, such defects and irregularities may be rectified, and the sale confirmed, by the district court, * * * in the. manner provided in this act.” The appellant, Hartley, claiming title to.certain lands in St. Louis county, acquired through a sale made.in 1867 by a foreign administrator, under a license from the probate court of that county, instituted this proceeding by petition, as prescribed by the above statute, for a confirmation of that sale. Among other alleged defects affecting the sale were the following: (1) The notice of sale designated “Duluth, in said county of St. Louis,” as the place of sale, no more particular designation being made. The sale was made at the office of the judge of the probate court in Duluth. (2) The notice of fíale was published on the 23d and 30th days of May, and the 6th and 13th of June, (but not thereafter,) naming the 29th day of June as the day of sale, and on that day the sale was made. In both these particulars the notice was insufficient to authorize a sale. The statute (Gen. St. 1866, c. 57, § 35) required a notice of the time and “place” of the sale to be published and posted in the manner specified. Merely naming the town in which the sale was to be made did not comply with this requirement. In legal effect, it was no notice. The same statute required the notice to be published “for three weeks, successively, next before such sale.” There being an interval of nine days between the completion of the last publication and the day of sale, the defect is obvious.

If, by reason of these defects the sale was void, the very terms of the statute relied upon as authorizing the relief sought in this proceeding show that the case is not within its scope, and the court was ¡right in dismissing it. Under the decisions of this court construing statutes, which, in substantially the form of our present law, (Gen. St. 1878, c. 57, § 51,) have long been in force, (Gen. St. 1866, c. 57, § 47; Pub. St. 1858, c. 38, § 23; Id. c. 39, § 52,) and upon the authority of other courts construing statutes like ours, it must be held that, if the conditions named in such statute respecting the proceedings preliminary to and including the sale were not complied with, the sale was void. Babcock v. Cobb, 11 Minn. 247, (347, 354;) Montour v. Purdy, Id. 278, (384,) (88 Am. Dec. 88;) Davis v. Hudson, 29 Minn. 27, (11 N. W. Rep. 136;) Ryder v. Flanders, 30 Mich. 336, 344; McCrubb v. Bray, 36 Wis. 333; Mohr v. Porter, 51 Wis. 487, 500, (8 N. W. Rep. 364.) Among these conditions, the fourth is that there had been given “notice of the time and place of sale as in this chapter prescribed;” and apart from the effect to be given to that statute, we entertain no doubt that, in the absence of a valid notice- of sale, the sale must be treated as void.

It is unnecessary to consider some other grounds which have been urged in opposition to this application. It is not to be understood from our not having referred to the particular reason which the court below assigned for its conclusion that we deem that to have been insufficient.

The instrument executed by this respondent’s grantor, an heir of the intestate, reciting the fact of petition having been made to the ■court for a license to sell, and authorizing and empowering the ad'-' ministrator to sell the land, “under direction of the said court,” was effectual as a waiver of notice of the application for license to' sell. It did not dispense with the necessity for observing the statutory requirements respecting the sale, to which we have referred. ';

Judgment affirmed.

1 Mitchell, J., did not hear the argument, nor participate in this decision.