Marvin v. Schilling, 12 Mich. 356

Marvin v. Schilling

12 Mich. 356 | Mich. | 1864

Manning J.:

This is an action of ejectment for the N. 1-2 of S. W. 1-4 of Sec. 8, township 15 N. of R. 9 E.

The land was patented by the United States to Timothy L. Howe. Howe died between 1845 and 1848, leaving a widow, Olive B. Howe, and an only son and child named Thaddeus B. Howe. Thaddeus was never married, and died in 1855. Olive B. Howe, the widow, married Procter Tong, by whom ' she had one child called Eliza, beth. She died in 1851. In May, 1858, Lucius S. Marvin was appointed guardian of Elizabeth Tong, by the Probate Court of Tuscola county, in which the land is situated, she at that time being about eight years of age, and residing with her father, in the state of New York, who applied to the Probate Court for Marvin’s appointment as guardian.

*359Marvin afterwards applied to the Probate Court for a license to sell the land, which was granted, and it was in pursuance of such license afterwards sold and deeded by him to his father, Daniel Marvin, the plaintiff. And in June, 1857, Procter Tong released all his interest in the land to plaintiff. On the death of Timothy L. Howe the land descended to his son Thaddeus __ Howe, and, on his death, to his mother, Olive B. Tong, and on her death to her daughter, Elizabeth Tong, subject to her father’s life estate as tenant by the curtesy (Comp. L. § 2803), if a husband can have such an estate in land acquired by his wife subsequent to the 13th February, 1855 : Comp. L. § 3292.

Schilling (the defendant Beck being in possession under him) claimed the premises under a mortgage given by Timothy L, Howe to Philander Howe, on the 11th Aprils 1839, and assigned by the mortgagee to one Shetterley, and by Shetterley to Schilling, by whom it had been foreclosed at law, and the mortgaged premises bid in at the sale. But before the time of redemption expired the mortgaged premises were redeemed by Marvin, the guardian.

Two principal, objections are made to plaintiff’s recovery:

1st. Want of jurisdiction in the Probate Court granting the license to sell, for an alleged defect in the petition of the guardian for the license. The license must be granted by the Probate Court of the county in which the guardian is appointed. Comp. L. § 3076. The statute also provides that if the validity of a sale made by a guardian shall be drawn in question, by any person' claiming adversely to the title of the ward, or claiming under any title that is not derived from or through the ward, the sale shall not be held void on account of any irregularity in the proceedings. Provided, it shall appear that the guardian was licensed to make the sale by a Probate Court having jurisdiction, and that he did accordingly *360execute and acknowledge, in legal form, a deed for the-conveyance of the premises. Comp. L. § 3092.

These were proved on the trial, viz: a license from the Probate Court of Tuscola to the guardian to sell the-land, and a deed duly executed and acknowledged by him, conveying the premises to plaintiff. The Probate-Court having jurisdiction was the Probate Court of Tuscola county that appointed the guardian: — Howard v. Moore, 2 Mich. 226; Coon v. Fry, 6 Mich. 506. It is. immaterial, therefore, whether the petition of the guardian was one that the court should have granted the license upon or not. If it was wholly defective the irregularity is one that does not affect the title under the statute. The transactions so much dwelled upon on the argument, that the money with which the guardian redeemed the premises was loaned by him; that the license to sell was to repay the money so loaned; that the premises were purchased by and deeded to the father of the guardian, the person of whom the loan had been made, and that they did not sell for enough to repay him and cover all: the expense the estate of the ward was put to, are matters that no way concern the defendants.

If there was any thing wrong in them it may at the-proper time be inquired into by the ward, or any one claiming under her.

It is not for defendants to drag her rights into this. Court in a litigation between them and plaintiff. The guardian had a clear right to redeem, the mortgaged premises, and whether he used the money of his ward or his. own, or loaned it of a third person for that purpose, is immaterial in the present suit.

2. Another objection made with a view to show title in a third person, is, that letters of administration were taken out by one Gardner Scott on the estate of Thaddeus B. Howe, and that the estate had not been settled..

The statute provides that administrators shall have a. *361right to tbe possession of all the real estate, as well as personal estate, of the deceased, and may receive the rents, issues and profits of the real estate, until the estate shall have been settled, or until delivered over by order of the Probate Court: — Comp. L. § 2904. In Streeter v. Paton we had occasion to consider the effect of this statute on the rights of the heir, and came to the conclusion that the statute did not interfere with the descent of the real estate to the heir, and his right to take possession, or bring ejectment therefor against any one except the administrator, or some one in possession under him. And that the object of the statute was to permit the personal representative of the deceased to take possession of the real estate, and hold it until it should be sold by him under a license of the Probate Court, or the final settlement of tbe estate, if he thought proper to do so, unless ordered to deliver it over to the heir by the Probate Court.

The judgment below must be affirmed, with costs.

Martin Ch. J. and Campbell J. concurred. Christiancy J. did not sit in this case.