55 Neb. 645 | Neb. | 1898
Graham brought suit against Manfull and bis wife to foreclose a contract for the sale of land, alleging that Manfull bad failed to malee the payments of purchase-money as provided. A decree was rendered directing the sale of the land to satisfy the amount found due under the contract. It is conceded that Mrs. Manfull’s interest is only such as results from the marital relation. The defense interposed by Manfull was that Graham’s contract required him to tender a good title in fee simple and that he was unable to do so because he claimed under a purchaser at a sale foreclosing a mortgage, and the foreclosure was ineffective. The defect in the foreclosure proceedings was that an undivided half interest Avas in certain minors and that no guardian ad litem had been appointed to represent them.
While the ansAver alleges a failure to serve process on the infants, the stipulation of facts on which the case was tried discloses no such defect. Where infants are
From the foregoing it follows that the sale made under the foreclosure decree was not void, and that it passed title to the purchaser. But it is said that the infant defendants have not yet reached their majority and may still be heard to question the regularity of the proceedings, that therefore the defendant is not required to accept a title that may be so attacked. The briefs do not indicate very clearly what procedure is still deemed open to the infants. We can conceive of no possible remedy which may remain open unless it be by virtue of section 442 or section 602 of the Code of Civil Procedure, by pro.ceedings in error, or by original action in the nature of a bill in equity.
Section 442 provides: “It shall not be necessary to reserve, in a judgment or order, the right of an infant to show cause against it after his attaining full age; but in any case in which, but for this section, such reservation would have been proper, the infant, within one year after arriving at the age of twenty-one years, may show cause against such order or judgment." For several reasons no right coqld be claimed by these infants under that section. In the first place the right there protected is not an absolute right to have the judgment set aside, but it is only to show cause against it. It is not here disclosed by pleadings or by proof that any such cause exists. The failure to appoint a guardian ad litem is not
That portion of section 602 which might be applicable, is as follows: “A district court shall have power to vacate or modify its own judgments or orders, after tbe term at which such judgment or order was made. * * * Fifth, For erroneous proceedings against an infant, married woman, or person of unsound mind, where tbe condition of such defendant does not appear in tbe record nor tbe error in tbe proceedings.” It will be observed that it is only where the condition of tbe defendant does not appear of record nor tbe error in tbe proceedings that this section applies. Tbe object of the exception is not at first manifest. Tbe supreme court of Ohio, construing a similar provision, said tbe reason seemed to be that if tbe defendant’s condition appeared of record it Avould attract the attenton of the court and so insure dxie scrutiny.
• A sufficient -eason why the title is not hazarded by an original action is that the defendant suggests no equity in favor of the minors or no defense to the foreclosure. This would be necessary to maintain an original case and it would indeed be necessary to a proceeding under section 602,
Affirmed.