Miller v. Sullivan

17 F. Cas. 355 | U.S. Circuit Court for the District of Nebraska | 1877

DILLON, Circuit Judge.

This case presents questions of great importance. I have considered them deliberately, but shall dispose of them briefly.

The statute of Nebraska did not require notice of the application of the guardian for license to sell to be served upon the minor or ward, but only “on the next of kin, and all persons interested in the estate.”

If we consider as proved the facts testified to by the probate judge in connection with what is shown by the records of the probate court, the most serious defect alleged to exist in the sale arises out of the want of service of notice upon the next of kin and others interested in the estate. The guardian was duly appointed, took the required oath, gave bond, filed a petition to sell; the aunts of the minor authorized an attorney to appear for them and waive notice, which he did; a license to sell was granted, a bond was given and approved, and a sale was made in good faith and confirmed, and a guardian's deed executed and possession taken under the sale, and maintained ever since.

Guided by the views of the supreme court of the United States, I doubt very much whether, under the Nebraska statute, the application of a guardian for a license to sell should be regarded as an adversary proceeding as against the “next of kin and all persons interested in the estate” of the ward. Grignon’s Lessee v. Astor, 2 How. [43 U. S.] 319; Thompson v. Tolmie, 2 Pet. [27 U. S.] 157; Cooper v. Reynolds, 10 Wall. [77 U. S.] 303; Good v. Norley, 28 Iowa, 188, and cases cited on page 208. The supreme court of Nebraska has never held otherwise upon this statute. But whatever may be the true view on this point, I am of the opinion that the five years limitation provided by the statute of Nebraska, in respect of sales by guardians, will protect tbe sale in question. Tbe sale was made by a guardian duly appointed, and wbo duly qualified; a petition for a sale was presented and granted; a bond was given; the sale was made at public auction after tbe prescribed notice bad been published. If tbe father was the next of kin, be of course bad notice, being the guardian, and tbe aunts of tbe minor authorized an attorney to appear for them, and be did so appear and waive notice. Possession was taken under tbe sale, and more than five years elapsed after tbe minor attained bis majority before this suit was-brought I am of opinion that the five years limitation statute applies to such a sale and protects tbe purchaser.

Such a purchaser can avail himself of the bar afforded by the statute, without showing a sale which would have been valid if it had been attacked within the five years. Holmes v. Beal, 9 Cush. 223; Norton v. Norton, 5 Cush. 524; Arnold v. Sabin, 1 Cush. 525; Wilkinson v. Leland, 2 Pet. [27 U. S.] 627; Howard v. Moore, 2 Mich. 226; Coon v. Fry, 6 Mich. 506; Pursley v. Hayes, 22 Iowa, 35; Good v. Norley, 28 Iowa, 188; Boyles v. Boyles, 37 Iowa, 592; Dolton v. Nelson [Case No. 3,976].

I stand by my opinion in Good v. Norley, 28 Iowa, 188, 206. The case might be different — I do not say it would be — if no possession had. been taken and maintained under the purchase for more than five years after the termination of the guardianship. It might be different if one had assumed to make a sale as guardian, who had never been appointed guardian or licensed to make the sale. But we need not consider such supposed cases.

Upon the actual case before us, we think' the statutory bar is effectual, and that the defendant is entitled to judgment. This is a wise statute, doubly wise in a new country, for reasons which fully appear in this case. It would be robbed of its virtue if it was confined to cases where the sale was valid, for such sales do not need the protection of such a statute. “They that are whole need no physician.” Judgment for the defendant.'