36 Mich. 238 | Mich. | 1877
First, The petition of the guardian for leave to sell was not fatally defective. It represented that the whole property of the wards consisted of their interest in the two parcels of real estate, and that over one hundred dollars was due and owing towards one parcel, whilst the other was burdened by a mortgage of fifty dollars then owned by John Kirby.
It-further represented in substance that the income of the property was inadequate to pay the debts, interest and taxes, and maintain, support and educate the wards.
There wras sufficient to give jurisdiction and enable the court to take cognizance of the matter. — § 3076, ch. 101; and § 3094, ch. 102, C. L. 1837.
Second, The guardian who received the license, at length made the sale and reported it to the court, and the court confirmed the sale and ordered conveyance.
The death of the guardian before conveyance could not and did not invalidate the sale. That was complete. The purchasers were entitled to conveyance, and no reason is perceived why the successor in the deceased guardian’s place might not be directed to complete the transaction by deeding and receiving the price.
There is no express provision that conveyance must be made by the same person who as guardian effects the sale, and nothing is discovered which implies any necessity for such a rule.
On the contrary, it cannot be doubted but that such a regulation would often lead to great embarrassment and useless expense. Every sale not carried out by deed would necessarily fall to the ground in case of death, resignation or removal of the guardian. The act of conveyance is rather official than personal, and more a function of the place than a matter appropriated to any individual, and I think the probate court was warranted in authorizing and directing the new guardian to make the conveyance which was due in law and which the former guardian was at his death lawfully required to execute.
The new guardian succeeded to such of the duties of the place as remained unperformed.
The sale was already consummated, closed and established. It rvas a matter finished. What remained to be done was to give the deeds and receive and account for the money.
The oath required in 'connection with the sale Avould have been inappropriate on the part of the neiv guardian. It .was not applicable to the situation and duties, and was properly omitted.
The sale to John Kirby was made subject to the Callaghan mortgage. But as Kirby owned the mortgage, there was no occasion to exact a bond from him to discharge it. The effect of the transaction was to cancel it.
Third, The record evidence on the back of Margaret Haley’s petition, showing that Ellen Lynch, then Ellen Heffernin, consented to the appointment of Mrs. Haley as guardian in place of the deceased guardian, was not open to contradiction by parol in this case.
Hence, the question put to Ellen for the purpose of falsifying the certificate on the back of the petition was properly overruled.
Fourth, Mrs. Haley, the second guardian, having testified for the plaintiffs that she never executed the guardian’s deed in question, stated, in answer to inquiry on cross-examination, that she did not sign the petition, produced from the probate court, for her appointment as guardian. In reference to this, the' judge charged that in considering Mrs. Haley’s denial of her execution of the deed, the jury should also regard the fact that she likewise denied her petition to be appointed guardian, and which was shown by the records to have been signed by her.
This was not objectionable. It was incumbent upon the jury to judge of the correctness of the wituess’ memory and decide upon her credit, and it was entirely proper for the court to direct their attention to the extent and application of her denials.
Fifth,- Neither the notice of sale, the report of sale, nor the deed, mentioned Eliza Heffernin, and it not appearing that her interest was sold, the court was requested by plaintiffs’ counsel to charge that in any event she was entitled to recover for one-fifth of the land sued for. This was refused.
The counsel is mistaken. This statute has no application. The only portion of' the section which makes any approach to such a case is the second subdivision. But that contemplates a case where one or more of a greater number of plaintiffs are found to have a right to the possession of the entire premises sued for, and not to a case where one of several plaintiffs is entitled to a fractional part or interest.
As the case was shaped, it would seem that the ruling was correct. The declaration having alleged a joint title in all the plaintiffs, it could not be sustained by proof of title of part of the premises in one only of the plaintiffs. In addition to the cases cited in defendant’s brief, see Doe ex dem. Marston and others v. Butler, 3 Wend., 149; Gillett and others v. Stanley, 1 Hill, 121; Cutter and others v. Doughty and others, 7 Hill, 305, 311.
This disposes of all matters of sufficient importance to be specially noticed, and no error is discovered.
The judgment must be affirmed, with costs, and the cause remitted for such other proceedings as may be proper.
