26 Mont. 93 | Mont. | 1901
after stating the case, delivered the opinion of the court-.
The single question arising upon the agreed statement is whether the omission of the guardian to give a special bon'd before the sale invalidated the sale authorized by the- order.
The contention of counsel for the defendant is that Section 387 requires a guardian to give a special bond in every case, that the provision is mandatory, and that an omission so to do renders the sale void. Counsel for the plaintiff insists that the requirement is directory only.
The question presented is one of first impression in this court. In Power v. Lenoir, 22 Montana 169, 56 Pacific Reporter 106, it was held that the.giving of the general bond required by a guardian by Section 358 of the Probate Practice Act, Compiled Statutes of 1887, is indispensable to the validity of his acts so far as the rights of the ward are concerned, the section providing that “before the order appointing any person guardian under this chapter takes effect, and before letters issue; the judge must require of such person a bond to the minor, with sufficient sureties, to be approved by the judge, and in such sum as he shall order, conditioned that the guardian will faithfully execute the duties of his trust according to law; and the following conditions shall form a part of such bond without
If the omission to give a sale bond was sufficient to deprive the court of jurisdiction, the judgment must be affirmed; in
The orders and judgments of a court within its jurisdiction may be voidable for error or irregularity, but such error or irregularity does not, of itself, avoid the orders or judgments. This rule applies to courts of general common-law jurisdiction, to courts of equity, and to inferior courts of limited powers; it is applicable to all courts alike. Whenever it appears that the act done, the order made, or the judgment rendered Avas within the scope of the poAver conferred, jurisdiction must be admitted, and, unless that jurisdiction is shoAvn to have been lost, the act, order, or judgment cannot be characterized as a nullity. Did the omission of the guardian to give a special bond render ineffectual the order of sale and the confirmation, thereof, thereby depriving the court of jurisdiction in the premises ? That the defendant Avas the duly appointed, qualified and acting guardian is conceded; it must be presumed that upon a proper petition and after a hearing the court- ordered the guardian to sell the lands of his Avards; in pursuance of that order the sale Avas made and confirmed; a deed of conveyance was thereupon duly executed by the guardian and delivered to the plaintiff. That the district court had jurisdiction of the class of cases or proceedings to Avhieh the one at bar belongs, and therefore of the subject-matter of this proceeding, and had jurisdiction of the persons of the wards, is also conceded. Its jurisdiction Avas regularly invoked. In making the order of sale its jurisdiction Avas duly exeraised. As Ave have said, the sale Avas not void unless the omission to give a special bond rendered .the order of sal© ineffectual; that is to say, unless the court lost jurisdiction of the subject-matter by the failure of
The object sought to be attained by Section 887 is the protection of the financial interests of the ward. Eor any loss which a decedent’s estate may suffer by reason of the failure of an administrator properly to account for and pay over the proceeds of a sale of land, the sureties on his general bond are certainly answerable. This appears by Sections 75 and 76, supra, and we perceive ño reason why, under the statutes of Montana, any different rule should be applied to sureties on the general bond of a guardian. By Section 358- the guardian must execute to the minor a bond with sufficient sureties in such sum as the judge may order, conditioned for the faithful performance of his trust according to law. As appears from the quotation hereinbefore made, the following implied conditions form a part of the bond: “Second. To dispose of and manage; the estate according to law and for the best interest of the ward,’ and faithfully to discharge his trust in relation thereto, and also in relation to the care, custody, and education of the ward. Third. To render an- account, on oath, of the property^ estate, • and moneys of the ward in his hands, and all proceeds or interest derived thereform, and of the management and disposition of the same, within three months after his appointment, and at such other times as the court directs, and at the expira-. tion of his. trust to settle his accounts with the probate judge, of with the ward, if he be of full age, or his legal representatives, and to pay over and deliver all the estate, moneys, and effects remaining in his hands, or due from him on such settle^, ment, to the person or persons who are lawfully entitled thereto.” Among the powers and duties of the guardian are the following: To pay all debts of the ward'out of his personal estate and the income óf his real estate, but, if these sources, are insufficient, then out of his real estate, upon obtaining- an..
We are of the opinion that the omission of the court to re
We are satisfied, upon reason as well as by the weight of authority, that the provisions of Section 387 are directory, and hence that the sale was not void because the guardian omitted to give the special bond required thereby. The judgment must therefore be reversed and the cause remanded with directions to the court below to render judgment in favor of the plaintiff, and it is so ordered.
Reversed and renumded.