87 Neb. 277 | Neb. | 1910
Lead Opinion
The facts in'this case, as shown by the pleadings and evidence, may be briefly stated as follows: In 1891 Cora May Buchanan was the owner in fee of lots 1 and 2, in block 3, in Gray’s addition to the village of Syracuse, Otoe county, in this state, and was managing and controlling her own property. There was a small house on lot 2.
In support of the contention that such notice was necessary to confer jurisdiction and that the sale without it was void-, we are cited to Myers v. McGavock, 39 Neb. 843. In that case the guardian applied for a license to sell the real estate of his minor wards for the purpose of raising funds'to be used in their maintenance and education, and the contention was made that the sale was void for the reason that the notice of the application was not served upon the wards. That contention was based on section 49, ch. 23, Comp. St. 1909 (Ann. St. 1909, sec. 5418), which is as follows: “A copy of such order shall be personally served on the next of kin of such ward, and on all persons interested in the estate, at least fourteen days before the hearing of the petition, or shall be published at least three successive weeks in such newspaper circulating in the county as the court shall specify in the order.” The court, by a commissioner, held that, as the proceeding had for its object the maintenance and education of the wards, and therefore for their benefit, it was not adversary and no notice as to them was necessary. It is true that the commissioner held in the opinion, by way of argument, but not deciding any question involved in the case, that had tKe application been for any other purpose than the maintenance and education of the wards a different rule would have been applied and a notice would have been necessary. But this was purely dictum, and such
We have searched the statute in vain for any intimation of a rule different in one case from the other. It is provided in section 22, ch. 34, Comp. St. 1909 (Ann. St. 1909, sec 5392) that guardians, whether for minors or other persons, “shall pay all just debts due from the ward out of his personal estate and the income of his real estate, if sufficient; or if not, then out of his real estate, upon obtaining a license for the sale thereof, and disposing of the same in the manner provided by law.” The statutes confer jurisdiction upon the district court and the judge thereof to grant licenses to guardians to sell the real estate of their wards. If it is proper and legal to issue the license in a case brought for one purpose, it must be equally so in all, for the statutes make no distinction. As bearing upon the question upon whom the notice must be served, under the provisions of section 49, above quoted, reference might be made to section 109 of the same chapter, which provides: “All those who are next of kin and heirs apparent or presumptive of the ward shall be considered as interested in the estate, and may appear and answer to the petition of the guardian, and when personal notice of the time and place of hearing the petition is required to be given, they shall be notified as persons interested according to the provisions respecting similar sales by executors and administrators, contained in this subdivision.” Such are the “persons interested in the estate,” referred to in section 49. We think it must be conceded that there is no direct provision of the statute requiring notice of the application to be served upon the ward.
In Mohr v. Manierre, 101 U. S. 417, a question quite similar to this was under consideration by the supreme court of the United States. In that case the contention arose upon the alleged failure of the guardian of an insane ward to publish notice in the manner provided by the statutes of Wisconsin, some claiming that the notice was,
The case of Mickel v. Hicks, 19 Kan. 578, cited in Myers v. McGavock, supra, is not in point in that case nor in .this, to the extent that the question there was as to the proceedings of an administrator in the sale of real estate under the statutes of that state in the matter of giving notice. The question arose as to whether the sale of real estate by an administrator was not a proceeding in remf Judge Brewer, in writing the opinion, says: “An examination of the authorities discloses a wonderful disagreement” — citing a number of cases holding that they do. He, however, gives his adherence to the opposite view, apparently, that, upon the death of the owner of real estate, the title and possession pass immediately to his heirs; that it is not sold as of course, but only when necessary to pay the debts of the deceased; that until that fact is judicially established the heirs may not be divested of their title, and before one is divested of title to property he ought to have his day in court.
In Scarf v. Aldrich, 97 Cal. 360, the statute required the order of the sale of the ward’s real estate to be “personally served on the next of kin of the ward, and upon all persons interested in the estate,” etc. (which is identical with the statute in this state), or the publication thereof for three successive weeks. It was contended that by reason of a defective notice the sale was void. It was also contended that proceedings by a guardian for the sale of his ward’s land were adverse to the ward, and that a substantial compliance with the statute was a pre
In 21 Cyc. 125, it is said in the text: “In many jurisdictions it is held that in the absence of a statutory requirement notice is not required to be given upon application for the sale of the land of minors” — citing cases from a number of states. It must be conceded that, aside from the holdings of the court in this state, there is, to use the language of Judge Brewer in Michel v. Hicks, supra, “a wonderful disagreement” of authorities. It is true, we think, that practically all agree that if a proceeding by a guardian to sell real estate of his ward is not adversary, but in the nature of a proceeding m rem, and the statute does not in terms require the notice to be served upon the ward, the failure to cause such notice to be served will not render the sale invalid. Many of the courts have held that the application to sell real estate by an administrator is an adverse proceeding, while a similar application by a guardian to sell the land of his ward is
The attack made upon plaintiff’s title to lot 2 is upon the ground that the bond of the guardian given to the judge of the district court in connection with the application for license to sell said lot 2 was approved by the clerk of the district court, and not by the judge, as required by section 5423, Ann. St. 1909 (Comp. St. 1909, ch. 23, sec. 54), and that for that reason the sale of said lot was void. In support of this contention the case of Bachelor v. Korb, 58 Neb. 122, in connection with a number of decisions of other courts, is cited. So far as the record shows, every essential step in the proceeding, except as to the approval of the bond, was regular and in strict accordance with the requirements of the statute. With the exception of the testimony of E. F. Warren, Esq., who was the attorney for the guardian in the application for license to sell, the record is bare of.any facts in connection with what occurred at the time the bond was approved. Mr. Warren stated frankly upon the witness stand that, as the transaction occurred some three or four years before the giving of his testimony, his memory was not clear upon the subject. He was asked to give his best recollection of the transaction. His answer
In Bachelor v. Korb, supra, it is said, quoting from the opinion: “This bond was never presented to, nor in any manner approved by, the judge of said district court. It was, however, filed in the court and approved by the clerk thereof.” So far as is shown by the decision, the court was not in session and the bond Avas filed in vacation without the knowledge or acquiescence of the judge, and Avholly without his direction or approval, and the sale was held void. In this respect that case is to be distinguished from this and is no authority for holding the sale in this case void. In the course of the opinion the writer, at page 127, refers to the opinion written by himself in Myers v. McGavock, 39 Neb. 843, and quotes from what is said at page 865, a part of which is as follows: “On the trial of the case at bar the defendants proved by the attorney Avho conducted the proceeding on behalf of the guardian that the bond was in fact presented to and ap
We have examined the cases cited and find that they fully and without reservation sustain the reasoning of the commissioner in both the Bachelor v. Korb and Myers v. McGavock cases, supra, and that by the reasoning and logic of both cases the sale in this case should be held valid. It may not b.e amiss to here state that the record and proofs as touching both sales involved in this inquiry show that the utmost good faith has characterized every step taken by the two guardians (brothers of Mrs. Buchanan) and by the purchasers of the lots in question. In each case the property was sold for its full value, and her estate has received full and due credit and actually received the benefits of the amounts for which the lots were sold. There is no semblance of fraud on the part of any one connected with either of the transactions, and we the more readily affirm the decision of the district court.
After this suit was commenced, the defendants, the Tibbits, having failed to answer, a default was entered against them, including Warren D. Tibbits, the guardian of Mrs. Buchanan. The court then appointed Mr. W. E. Aloran guardian ad litem, who filed his answer consisting of a general denial, and alleging a number of affirmative defenses. Subsequently the guardian and other members of the family obtained leave and answered, setting up the facts and in substance admitting plaintiff’s equities. The guardian ad litem remained in the case, seeking to support the title of the ward, and when the cause was determined in favor of plaintiff took this appeal. Practically
The judgruent of the district court is in all things
Affirmed.
We concur in the conclusion, but express no opinion as to the third point in the syllabus and the second point discussed in the opinion.
Dissenting Opinion
dissenting.
I am unable to reconcile the majority opinion with section 54, ch. 23, Comp. St. 1909, or with the construction of that statute so clearly and distinctly made in Bachelor v. Korb, 58 Neb. 122. The section of the statute reads: “Every guardian licensed to sell real estate, as aforesaid, shall, before the sale, give bond to the judge of the dis
In construing that statute in Bachelor v. Korb, the first three paragraphs of the syllabus read as follows:
“(1) The provision of the statute (Comp. St. 1897, ch. 23, sec. 54), requiring a guardian licensed to sell the real estate of his wards to give a bond to the judge of the district court, to be approved by such judge, is mandatory.
“(2) The district courts are not invested with discretion to require or not a guardian appointed in this state, when licensed to sell lands in this state of his wards, to give the bond required by said section 54.
“(3) Such a guardian’s sale'of the lands of his ward is void unless, before such sale, the guardian executes the bond required by said section 54. The judge of the district court granting the license must be the obligee in the bond, and it must be approved by such judge.”
It is not disputed that the district judge did not approve the bond. The uncontradicted evidence shows that, the attorney for the guardian tendered the bond to the district judge while he was upon the bench hearing a case, and that the judge, without even looking at the bond, directed counsel to take it to the clerk. The bond was taken to the clerk and by him approved. In my judgment, and under the rule announced in Bachelor v. Korb. the bond was absolutely void. It will not do to say that the action of the judge while upon the bench, in directing the attorney to take the bond to the clerk, was an approval by the court. If the statute permitted the approval of such bond by the court, I think it is clear that that would have been sufficient. But the court is not given the power to approve such bond. The bond must run to the district judge and must be approved by him as judge, and not when sitting as a court. Such a proceeding is
In Veeder v. McKinley-Lanning Loan & Trust Co., 61 Neb. 892, Bachelor v. Korb, supra, is cited with approval and quoted from as follows: “The rule of caveat emptor applies to a purchaser at a guardian’s sale' of the real estate of his ward. * * * But the defendants in error, though they may have paid a valuable consideration for this real estate, are not innocent purchasers of it. One who purchases real estate at a guardian’s sale, or purchases from the vendee of that sale, must take notice at his peril of the authority of the guardian to make the sale. The doctrine of caveat emptor applies to purchasers at guardians’ sales.”
In Neary v. Neary, 70 Neb. 319, we again put the seal of our approval upon Bachelor v. Korb in the following language: “The cases of Bachelor v. Korb, 58 Neb. 122, and of Veeder v. McKinley-Lanning Loan & Trust Co., 61 Neb. 892, are instructive cases upon the doctrine followed in this state.” .
' If I could see any way to affirm the judgment in the case at bar without doing violence to the statute and to our former holdings, I would be glad to do so. Rut, however unfortunate the situation of the purchaser at the guardian’s sale may be, the court, in my judgment, is powerless to give him any relief in this case.