165 Iowa 207 | Iowa | 1914
This is an action brought by the administratrix of the estate of Andrew Hrdlicka to recover a balance claimed to be due on the purchase price of eighty acres of land sold by said administratrix to the defendant under order
At the October term, 1910, the administratrix filed in the district court of Iowa county a petition in due form, praying that she be authorized to sell said real estate for the purpose of paying the indebtedness of the estate. It appears that, after the filing of this petition at the October term, the court ordered the sale as prayed, and appointed appraisers; that the land was appraised at $100 an acre, or $8,000.
On the 29th day of November, 1910, the administratrix entered into a written contract with the defendant, in which she agreed to sell, on the 1st day of March, 1911, all her right, title, and interest in and to said real estate for the sum of $8,000, payable in cash on the 1st day of March, 1911, and she therein agreed with the defendant to furnish him an abstract of title showing good and clear title to the premises sold on the 1st day of March, 1911, and to deliver a good and sufficient warranty deed conveying clear title.
It appears that subsequently it was discovered that proper service had not been made on some of the parties, who were minors under fourteen years of age. Service was made by having them accept service of the notice. This was thought by the parties to be a fatal defect in the proceedings, and thereafter, in June, 1911, the administratrix filed another application in the district court, alleging that at the October term of said court, 1910, she made an application for an order to sell real estate (being the real estate hereinbefore referred to) to pay the debts of said estate; that said application was set for hearing October 18,1910; that notice of the application to sell was accepted by written acceptance of all parties interested, and that the order for sale was made in November, 1910; that the application to sell showed, that the administratrix had contracted to sell said premises prior to the fil
It appears, however, that the notice of this proceeding claimed to have been served upon the minors, upon which the court’s jurisdiction depended, was served by one August Wiebold, a constable, but the same was not sworn to or verified in any way, and no proof of the service appears on the record other than the unsworn return of said constable. Thereupon it was claimed by the defendant that the proceedings on the part of the administratrix, and upon which alone her right to convey depended, were not perfect, and that the record did not show (and an abstract could not show) a good and clear title to the premises sold, and that, by reason of the defects aforesaid, she could not deliver a good and sufficient warranty deed conveying clear title.
Iowa City, Iowa, Sept. 8, 1911.
I, W. J. Baldwin, for Melissa Herdliska and the heirs of Andrew Herdliska, deceased, and for Melissa Herdliska, as administratrix of the estate of Andrew Herdliska, deceased, hereby acknowledge receipt of $7,800.00 from D. L. Evans by way of payment on the mortgage made by William F. Fitzgerald to Clara J. McLean, dated-November 23, 1905, due live years after date, recorded in book 47, page 196, Land Mortgage Records of Iowa county, Iowa, conveying the N. W. % of section 13, township 79 N., range 9, assigned to the Farmers’ Loan & Trust Company of Iowa City, Iowa, and received by me by way of said payment as payment of part of the purchase, price of the S. % of the N. W. 14 of section 13, township 79 N., range 9, Iowa county, Iowa; the remainder of said purchase price being retained by' agreement between the parties, pending perfection of said title; the said payment being made by the said D. L. Evans to prevent foreclosure of said mortgage, which is now due and which the holder thereof has threatened to foreclose unless same is paid at once; and by making this payment at this time the said D. L. Evans admits no responsibility for the delay in the making of said payment prior to this, and admits no claim of Melissa Herdliska for interest thereon, and waives no claim to have the title to said land perfected by the said Melissa Herdliska and the heirs of Andrew Herdliska, deceased; and this payment is to be received and accepted as payment made to the said estate on the title to said land passing to the said D. L. Evans as aforesaid, and is to be considered as paid in consideration of said land on the title thereto passing and on the passing of title from the administratrix of the estate, of said Andrew Herdliska and from his widow and heirs to the
It appears that, after the suit at bar was commenced, Melissa Hrdlicka, widow, was substituted for Melissa Hrdlicka, administratrix, and is now prosecuting in her own right; she claiming that she has settled with the estate, and now owns whatever right the estate had to the $200 in .suit. The court, at the conclusion of the trial of the cause, entered, judgment for the defendant, dismissing plaintiff’s petition. The judgment does not show on which of the several defenses interposed by the defendant judgment was entered.
If the defendant has perfected the title, then the plaintiff would be entitled to recover the difference between $200 and the fair, reasonable, and necessary expense incurred by him in perfecting the title, if any.
The record clearly shows that in this first proceeding service upon the minors was made by acceptance of service; and that some of the minors were under fourteen years of age. This is not a compliance with the requirements of the statute.
Section 3533, of the Code provides: “If the defendant is a minor under fourteen years of age, the service must be made on his father, mother or guardian, but if there be none of these within the state, then on the person therein having care of or control over or with whom he resides, or in whose service he is employed.”
This service is essential to jurisdiction, and, without jurisdiction over a minor, any order made as to him is void.
Section 3524 provides: “If service is made within the state ... by one not such officer, . . . the return must be proven by the affidavit of the person making the same.”
The notice served in this ease, if served, was made by a constable. There is no proof of the service because the alleged service was not sworn to or verified in any way, so that, as to these minors, the record negatives, rather than confirms, the finding of the court that it had jurisdiction. That upon
Many questions are urged by counsel on the subject of appeal and upon the rules of law involved that we do not think applicable to this case as it stands upon the record here, and therefore we do not feel called upon to review these authorities so relied upon.
We think the judgment ought to be affirmed, but modified so as to show in the judgment of dismissal that the same was dismissed as prematurely brought, leaving to the plaintiff the right to pursue any remedy she may elect after she has perfected the record, or to recover any balance that may be due her if the defendant has perfected the record title. — Modified and Affirmed.