2 Doug. 433 | Mich. | 1847
delivered the opinion of the Court.
The case presented for our judgment has been considered with the deliberation which its importance demands. In proceeding to announce the opinion of the court upon the several questions involved in it, we shall depart somewhat from the order in which they have been presented to us.
1. It appears on the face of the decree of the probate court appointing Archange Simmons guardian of the plaintiffs, that she was, at the time, a feme covert ; and it is contended on the part of the plaintiffs, that she was incompetent to be a guardian, on account of the coverture ; and that therefore the decree, and her subsequent acts as guardian, are void. It is said that the statute under which these proceedings were had, required that a guardian appointed by the court of probate, should execute a bond, with sufficient sureties, for the faithful discharge of the trust; and, as a bond executed by a feme covert is void, the conclusion is sought to be drawn that the legislature intended to exclude her from the office of guardian ; in other words, it is contended that a person incapable of executing the bond, is also incapable of becoming a guardian to minors.
But does the statute make it necessary for the guardian to execute the bond? The first section of the “ Act empowering the Judge of Probate to appoint guardians to
We are not entirely without precedent for this construction. The English statute of 3 Jac.I, c. 8, provided, that “no execution should be stayed, upon, or by any writ of
Let us grant, however, that the statute does require that the guardian should execute the bond ; does it follow that the grant of letters of guardianship to a feme covert
The case of Janett v. The State, 5 Gill & John. 27, establishes both of these propositions. In that case, a person died, leaving a widow and an infant son entitled to personal property. The widow refusing to act as guardian, the orphan’s court appointed some third person who accepted the trust. The person thus appointed, died ; and the mother, (who, in the mean time intermarried the plaintiff,) as natural guardian of the infant, and with the
In the case of Ray and wife v. Doughty and another Admrs. 4 Blackf. R. 115, it seems that letters of administration were granted to a widow, being nineteen years of age, on the estate of her deceased husband, and that suit was brought against her co-administrators, for a devastavit committed by the infant administratrix. It was held, that “ while the letters of such infant administratrix remained unsuspended and unrevoked, the payments made to her by the debtors of the intestate, and the delivery of goods of the estate to her by her co-administrators, are to be considered in the same light, as if her authority were undisputed.” It was further held, that the grauting of let
Toe case of Westcott v. Cady, 5 John. Ch. R. 335, asserts the same principle. In that case, it was stated in the answer, “that the.plaintiffs were aliens, and residents in England, and could not administer,” &c.; and in the arguments of counsel it was urged, that the plaintiffs could not be regarded as administrators, because, being aliens, always residing in a foreign country, they never could have qualified as such. Upon the question thus raised and discussed, the Chancellor, (Kent,) remarked: “ Another objection, of a technical kind, is, that the plaintiffs are aliens, and residents in England, and that they have not qualified themselves, according to law, to sue here as administrators. The answer to this is, that letters of administration, under the seal of the court of probates of this state, are produced, and I am bound to presume omnia rite acta, and to give full credit to the judicial acts of a competent jurisdiction. I am not bound to look beyond the letters of administration, sub pede sigilli.” p. 343.
It has also been held, that payment to an executor who had obtained probate of a forged will, was a discharge to the debtor, notwithstanding the probate was afterwards declared null in the ecclesiastical court. Will, on Ex’rs. 404; Allen v. Dundas, 3 T. R. 125, 129; R. Peebles’ Appeal, 15 Serg. & R. 39; 4 Bac. Abr. 62. It would be productive of infinite inconvenience and injustice if a contrary rule were established. There would be no safety in dealing with an executor, administrator or guardian,
If the views I have expressed respecting the force and effect of decrees of the probate court be correct, it is apprehended, that, although it is incompetent to grant letters of guardianship to a feme covert, yet, if granted, the acts of a guardian, within the scope of his powers, will be binding and obligatory, and afford full and ample protection to third persons dealing with him. Our statute does not, in terms, prohibit the appointment of a feme covert as guardian. If such an act is prohibited, it must be in consequence of that provision which requires a guardian to give a bond; or, the incapacity must result from the legal relationship existing between husband and wife. I have endeavored to show, that the execution of the bond, by the guardian, is not required, and that the spirit of the statute is fully complied with, if a bond is given with sufficient sureties ; and that if I am in error in this respect, and a bond is required to be executed by the guardian, yet, the decree of the probate court granting letters of guardianship to a feme covert, is not, for that reason, void; that the court of probate having jurisdiction of the subject matter, the grant of letters of guardianship to a feme covert, (whose bond at common law would be void,} is a mere error in law, which might be corrected upon appeal, but which does not render the decree nugatory. These positions, it is believed, are abundantly sustained both upon principle and authority; and are sanctioned by sound policy, reason and justice.
There being no express statutory disqualification, is the
Between the civil and the common law, there exists a wide diversity in respect to the legal consequences of marriage. The great point of distinction is this: that by the former, husband and wife are regarded as distinct persons who may have separate estates, contracts, debts and injuries ; whereas the latter treats them as one. So distinct were the husband and wife by the Roman law, that they might contract with each other; and, upon the same principle, sue each other. Bro. Civ. Law, 82, ’3. Some of the evil consequences which might be supposed to flow from permitting the wife to enter into contracts without the consent of the husband, were obviated by rendering such contracts inoperative upon the husband, and permitting her to sue and be sued without her husband. The authority to sue and be sued, however, is recognized in the tribunals in England, which have, to some extent, retained the imperial constitutions, viz: the courts of equity, and ecclesiastical courts.
The disabilities which, at the common law, attach to a feme covert, apply solely to- her civil rights ; and a reason among others for creating the incapacities provided in that code, is to be found “ in the variety of wills with which human nature is ordinarily constituted, which makes it necessary for the preservation of peace, that where two or more persons are destined to pass their lives together, one should be endowed with such pre-eminence as may prevent or terminate all contestation.” Experience and observation prove that this pre-eminence should be lodged in him upon whom rests the chief burden of educating, defending and providing for the wants of his family, and who is endowed by nature with those qualities, moral, intellectual and physical, which enables him to, sustain that burden.
The powers and duties of guardians are not expressly defined by the statute of 1827, but it may be fairly inferred that a guardian has not only the custody of the person of the ward, but has also the control of his personal property, and, for certain purposes, of his real estate. His interest in the real estate is sufficient to enable him to maintain trespass, Byrne v. Van Hoesen, 5 John. R. 67; or to lease it for a term of years, 4 Bac. Abr. 585 ; and, as the guardian stands to his ward, in loco parentis, he may maintain an action on the case for seduction. In general, a guardian possesses all the powers of a guardian under the statute of 12 Car. 2, who, it is said, has the same interest in all respects as a guardian in socage, except as to the time and modus habendi ; 4 Com. Dig. 510. A guardian, it is said, has an authority coupled with an interest; but this interest cannot be regarded as a beneficial, but a mere legal interest. In Granby v. Amherst, 7 Mass. R. 5, the court said that by the law of Massachusetts from which ours was borrowed, guardians, being agents of their wards, have an authority not coupled with an interest.
It was contended in argument, that a feme covert might execute the powers and duties of a guardian, administrator, or executor, without the consent of her husband. And this position was sought to be sustained by showing
These tribunals are, for the most part, governed by the rules of the civil law in respect to the incidents of coverture, regarding the. wife as in many respects a feme sole, and in view of the wide distinction which we have already shown to exist between the civil and the common law on this subject, it is evident that their decisions must be followed with much caution.
Wentworth, in his treatise on executors, (p. 375 — ’7,) says: “ As for the second point, viz : wives or women coverts being made executors, and so having the office of executorship put upon them against their husband’s will, there has also been diversity of opinions. In the time of King Edward the First, Brab. Justice, saith she may be executor without her husband, and the administration shall be delivered to her only. And I think he meant that this might be without the assent of the husband, or whether he would or not; for so it is said in the time of King Henry the Seventh to be the law spiritual; and indeed in courts spiritual no difference is made between woman married and unmarried, for aught I can find. There a wife sueth, and is sued, alone without her husband; he intermeddleth not nor is meddled with touching the things pertaining to his wife. But at the common law it is otherwise ; and thei-e, as Brian, Chief Justice, saith, a wife, without the assent of her husband, cannot be executor, he meaning thereby that the husband may oppose and hinder it; for such a one may be named executor in and by a will, without the knowledge of the husband.” “She may clearly, as well as any other person, (especially if her husband concur with her therein,) refuse the office, trust, and charge, so as if there be no other executor
By the civil code it is quite clear that a feme covert might, even against the will of the husband, take upon herself the office of executor or administrator, while at the common law, it is equally clear that she cannot, without his
Toller, in his treatise on executors, recognizes the rule, that a feme covert may, with the consent and concurrence of her husband, take the- office of an executrix, (p. 31.) The same author, (p. 91,) uses this language : “If a feme covert be entitled, she cannot administer without the husband’s permission, inasmuch as he is required to enter into the administration bond, which she is incapable of doing. But if it can be shown by affidavit that the husband is abroad, or otherwise incompetent, a stranger may join in such security in his stead. In either case, the administration is committed to her alone, and not to her jointly with her husband.” In the case of an infant entitled to administration, the practice is to assign it to a guardian of the infant, during his minority. The reason for committing administration to a guardian of an infant, arises, however, from a want of capacity on the part of the infant, and as a protection to the inexperienced, against the machinations of the fraudulent; while the disabilities of femes covert are the consequence of the sole authority which the law has recognized in the husband.
The rule as stated by Toller, will be found to be sustained in 4 Bac. Abr. 32. It is there said that a feme covert may be appointed executrix, and that in the spiritual courts she is considered as a feme sole, capable of sueing and being being sued without her husband; and, therefore, according to their law, she may take upon her the probate of a will without the assent of her husband. It is denied, however, that by the common law she can
The capacity of a feme covert to become executrix or administratrix, is also affirmed by Baron Comyn. 1 Com. Dig. 480, 497. See also Chitt. on Contr. 149 ; Will, on Ex’rs. 325, ’6 ; 1 Sch. & Lef. 266. It is also well settled that a feme covert may execute a power simply collateral; and, although once questioned, it seems she may also execute a power appendent, or in gross. Sugd. on Pow. 155; Godlphin v. Godolphin, 1 Ves. 21 ; Lewin on Trusts, 89.
If, then, a feme covert may, with the consent of her husband, execute the office of executor and administrator, and may, in a variety of other cases, act in autre droit, it is difficult to imagine why she may not, with the like consent, execute the office of guardian under our statute. I say, with the consent of the husband ; for, looking to the duties and powers which appertain to that office under our statute, and to the legal consequences which the common law attaches to marriage, I am satisfied that the consent of the husband is necessary; although I am inclined to the opinion, that letters of guardianship granted to a wife, by a competent jurisdiction, without such consent, would not be absolutely void, but simply voidable.
Express authority is not wanting, however, to show that a feme covert may be a guardian. “ It is improper that the wife of a man addicted to the habits of intemperance, should be guardian (in socage,) she being subject to his
In re Gornall, 1 Beavan, 348, a petition was presented in behalf of an infant, praying a reference to a master to approve of a proper person to be guardian. From the case it appears, that, by an order of the court, the mother of the infant petitioner, was appointed his guardian, and that after such appointment she married. In support of
In 4 Com. Dig. 506, it is said that, “ if a wife, being a guardian, (in socage,) die, her husband shall not have it, though he survive.”
I think it may be assumed, as fully established, that it is competent, at the common law, for a feme covert to execute the office of guardian ; and that she may, with the consent of her husband, execute the like office under the provisions of the statute of 1827.
The next question to be determined is, whether such consent was given. Nothing appears in the case before us, showing any' express consent by the husband. The only fact from which consent may be inferred, is, the execution, by the husband, of the bond required to be given by the guardian before sale of the real estate of the ward. In the absence of any direct evidence to the contra^', I think this would be sufficient to warrant the presumption that his consent was given. It is said that administration taken by a wife, during coverture, must be presumed to have been with the assent of the husband. 4 Bac. Abr. 13. In the case of Adair v. Shaw, 1 Sch. & Lef. 243, Lord Redesdale, in the course of an elaborate and learned opinion, says: “ The administration having been taken in this instance during coverture, must unquestionably have
2. A further objection made to the validity of the decree of the probate court appointing Archange Simmons guardian, was, that it did not appear, on its face, that the minors were under fourteen years of age, or that they were cited to choose a guardian.
Another point made and which we will consider in connection with the above is, that the circuit court erred in refusing to permit the plaintiffs to prove on the trial, that, at the time of the appointment of said guardian, Thomas Palmer, one of the alleged minors named in the decree, was over fourteen years of age.
In the investigation of these points, I have encountered considerable difficulty, arising principally from the circumstance, that learned judges have differed widely upon the question, how far the proceedings had before courts of probate could be impeached collaterally,' and when, and under what circumstances, their decrees are to be deemed and taken as conclusive and binding, until revoked by a revisory court, upon a direct proceeding taken for that purpose.
The importance of the question is not confined to the case or the parties before us, but upon its determination will depend the title to a large part of the real estate in the older counties in this state. This consideration has induced me to give to this part of the case reserved for our advice, a careful and extended examination; the result of which has been, that if reliance were to be had upon adjudged cases, no satisfactory rule could be extract
At the time the decree appointing Archange Simmons guardian was made, two statutes were in force from which the jurisdiction over the appointment of guardians was derived ; both approved on the same day, viz April 12, 1827. One, entitled “ An act establishing Courts of Probate,” defined in general terms the jurisdiction of these courts, and granted, inter alia, the power of “appointing guardians for minors, idiots and distracted persons,” without any restriction as to the age of the minors-. R. S. 1827, p. 85, § 1. (See ante, p. 4-35.) The other statute was entitled “ An Act empowering the judge of probate to appoint guardians to minors,” and authorized the probate court to appoint guardians for minors under the age
It was contended on the argument that the former of these acts authorized the appointment of guardians for minors ; that the power of choosing granted to the minor by the latter act amounts,-in fact, to the privilege of nomination ; and that the judge might either “ allow,” or reject the nomination ; — -that the power of appointment, in all cases, is conferred upon the judge of probate, which he may exorcise without citation; and that such a proceeeding, where the minor was over fourteen, might be irregular, but is not void, as the choice to be made by the minor, is a mere incident in the proceedings,- and does not enter into the jurisdiction or authority of the court to’ ap
I am not prepared to say, that if a citation had been issued and served upon the minors, and, upon their appearing, a quéstion as to whether Thomas Palmer was under or over the age of fourteen years had arisen, and the judge of probate, after hearing evidence to that point, had arrived at a wrong conclusion, his decree appointing a guardian would have been void, if, in fact, he was over fourteen years of age. By issuing and serving a citation upon the minor, the probate court would have acquired jurisdiction over the subject matter and the person, and • any error of fact committed by him in the exercise of that jurisdiction, might have justified'á reversal of-the decree upon appeal; buttsuch error in judgment would not ren
It is a fundamental principle of the common law, founded in justice and sound policy, that no judgment or decree affecting the person or property of an individual shall be valid, unless notice, actual or constructive, is given to the individual whose rights are to be affected. The exceptions to this general rule, prove the existence of the rule itself. And this principle is applicable to all courts, whether of superior or inferior jurisdiction. With respect to superior courts, however, jurisdiction will be presumed until the contrary be shown ; whereas, the jurisdiction of an inferior court must be shown by those claiming rights under their orders or decrees. Opinion of Spencer, J. in Mills v. Marlin, 19 John. R. 33; Borden v. Fitch, 15 Id. 141.
Applying this principle to the case before us, it is clear that nothing appears in the proceedings to show the authority of the probate court to make the order appointing a guardian for a minor over the age of fourteen years. The record furnishes no evidence whatever, that a citation issued, or that any notice of the pendency of the application was given to any of the minors. By the decree, the custody both of the persons and property of the minors was transferred to the guardian. It was a decree by Which their rights and interest's were Vitally affected. The fa**
The case of Bloom v. Burdick, 1 Hill’s R. 130, illustrates and enforces the principle for which I contend. An administrator presented a petition for the sale of the real estate of an intestate, which was granted, and the estate sold. An action of ejectment was subsequently brought by the heirs at law of the deceased, for the real estate sold. The statute of New York requires that guardians should be appointed to take care of the rights of infant heirs who may be interested in the estate. The record of the surrogate did not show the appointment of a guardian to represent the interests of the plaintiffs, who were minors at the time the order for the sale was made. In delivering the opinion of the court, Bronson, Justice, remarks: “ The surrogate undoubtedly acquired jurisdiction of the subject matter, on the presentation of the petition and account. It was also necessary .that be should acquire jurisdiction over the persons to be affected by the sale. It is a cardinal principle in the administration of justice, that no man can be condemned, or divested of his right, until he has had the opportunity of being heard. He jpust, either, by serving process, publishing notice, appoint
In the case of Jackson v. Robinson, 4 Wend. 436, the lessor of the plaintiff claimed to recover under a deed from an administrator. One of the objections taken to the sufficiency of the evidence to entitle the plaintiff to recover was, that it was not shown, otherwise than-by the recitals in the order, that there were any debts of the intestate, that there was a deficiency of assets to pay the same, or that the personal property had been applied to' the payment of the debts, and consequently that enough had not been shown to give the surrogate jurisdictions Marcy, Justice, in delivering the opinion of the court, makes use of this language :■ “ After hearing the proofs and allegations of the executors or administrators and others interested in the estate, the surrogate is to examine into and determine the question whether there is sufficient to pay the debts or not; and if he finds that there is not enough for that purpose, he orders- a sale. In> deciding upon the sufficiency of the assets, he acts judicially, and an error in this matter does not affect his jurisdiction.” “ He has not only authority, but it his- duty to settle that question. If he errs, his determination may be reviewed and reversed on appeal; his proceedings are not void, but voidable only.” I cite this ease to support the position I have laid down, that, if the judge of probate had jurisdiction of the subject matter, and of the person of the minor,
Applying these principles to the case before us, it will appear that, notwithstanding the probate court had jurisdiction t.o entertain the petition presented by Mrs. Simmons for the appointment of guardian- to her minor children, yet, that it was not competent to pronounce a decree in relation to such of the minors as were over the age of fourteen years, until a citation was issued and servad upon them.
It was intimated in argument, that the application itself shows* that all of the minors were under that age, and that this was sufficient to authorize the decree, whatever tbe fact might be. This argument cannot, I think, be sustained. It would be to make a mere suggestion contained in the petitidn, unsupported by the oath of the petitioner, or any other proof* conclusive evidence of a fact, upon the determination of which the right to enter a decree appointing a guardian depended. The legal effect of the application, was to give to the court of probate jurisdiction to inquire into the very fact which the application assumed ; but the petition did not, of itself, prove the fact. The decree does not purport to find the fact that the minors were under the age of fourteen years, nor that any citation ever issued, nor that any proof was offered, or evidence heard in relation to that fact¡
To sustain further the views I have expressed, upon the point immediately under consideration, I will recur to a few more of the many authorities which were cited upon
In the case of Chase v. Hathaway, 14 Mass. R. 223, it was held, that the decree of a court of probate appointing a guardian to a person who had been adjudged and certified by the select men of the town in which he resided, to be incapable of taking care of himself, was absolutely void, no notice having been given to him before the final adjudication in that court. The statute did not, in terms, require that notice should be given ,- but the court held, that an opportunity should have been given to the person interested, to be heard in support of his capacity. It was urged in that case, that, as the proceeding was wholly a matter of judicial discretion in the judge of probate, it was to be presumed that every proper measure was adopted by him, before passing the decree ; and that notice to a non compos, would be of no avail. The courts however, rested the judgment upon the ground, that notice-to the- party was essential' to jurisdiction ; and, it not appearing upon the face of the proceedings, or otherwise, that notice was given, they declared the decree null and void; and, to the last proposition upon which' the decree was sought to be sustained, the court gave the following conclusive answer: “ It has been intimated, that notice to an insane person would be of - no avail, because he would be incapable of deriving advantage from it. But the question upon which the whole process turns, is, whether he is insane.” In that case, the application or petition to the judge of probate gave jurisdiction of the- subject matter, precisely as the application did in the case before us. But the court held the decree void, because notice was not given to the party to be affected by the decree, and he was thus deprived of an opportunity of contesting the very fact upon which the right to pass the decree depended. So in the case before us : the failure
In the case of Newhall v. Sadler, 16 Mass. R. 122, the facts were, that one Jonathan Newhall died intestate, leaving several children, his heirs at law, to inherit his estate. A proceeding was had before the probate court with a view to divide the estate among the heirs. For this purpose, commissioners were appointed by the judge of probate, who appraised the estate, and assigned the whole to the eldest son, being of opinion that the same could not be divided among all the heirs without prejudice to or spoiling the whole ; and they ordered him to pay to the other heirs their several proportions of the appraised value of the estate — the sum to be paid to the demand-ant being $217.53, within three years, with interest annually. The doings of the commissioners were approved by the judge of probate; and, by his decree, the whole of the estate was assigned to the eldest son, “ upon condition that he should pay to the other children of said deceased, or to their lawful representatives, the several sums of money, at the time and with the interest, as ordered in said return of said commissioners.” No security was ordered to be given to the heirs, and none in fact was given. Hetty Newhall, the demandant, disregarding the decree of the probate court, brought a writ of entry to recover seizin and possession of her share of the real estate inherited from her father. The supreme court directed a recovery, on the ground that the judge of probate had no authority to pass a decree until the money was actually paid to the demandant, or good security given ibr its payment as required by the .statute. The jurisdic
We have been referred to the case of Loring, Adm,’r v. Steineman, 1 Metc. 204, as supporting the views of the counsel on the part of the defendant, in respect to the con? elusiveness of the decree of the judge of probate. I have carefully examined that case, and do not find that it mili? tates against or overrules other cases tq. b,e found in the Massachusetts Reports, some of which baye been referred to in this opinion. On the contrary, both the reasoning decision of the court in that case, tend to confirna the views I have endeavored to sustain. The language of the Chief Justice in one part of the opinion, is as follows: “ We can entertain no doubt that the judgment of a probate court, duly made, after such notice as the statutes require, or if they require no notice, then after such notice as the court, in its discretion, acting upon the circumstances of the case, may think proper to order, must be deemed in its nature so far conclusive, as to protect an administrator, acting in good faith, in conforming to it.” But it is sufficient to say of that cas,e, that the court likeped the proceeding had before the court of probate, to proceedings in courts of admiralty, where persons are only incidentally concerned.
■ In the case of Heath v. Wells, 5 Pick. R. 140, it was held, that a license granted to an administrator to sell real estate of a deceased person, to pay a debt barred by the statute of limitations respecting executors and administrators, was void. After reviewing some of the previous decisions in Massachusetts respecting the conclusive nature of decrees made by the probate court, Mr. Justice
The case of Perkins v. Fairfield, 11 Mass. R. 227, is
In Holyoke v. Haskins, 5 Pick, R. 20, administration granted by the judge of probate of Suffolk, on the estate of a person, whose domicil at the time of her death was in Middlesex, was held void, for want of jurisdiction. It might have been said in that case, as in this, .that the residence of the deceased was involved in the question as to whether an administrator should be appointed, and consequently the decree was not absolutely void, but merely voidable..
We have been referred by counsel to the case of the United States v. Arredondo, 6 Pet. R. 709, for a definition •of the word jurisdiction. Mr. Justice Baldwin, in that case says : “ The power to hear and detetmine a cause is jurisdiction ; it is “ coram judice," whenever a case is presented which brings this power into action; if the petitioner states such a case in his petition, that, on demurrer, the court could render judgment in his favor, it is an undoubted case of jurisdiction.” With this definition I
Rut it is said that the only remedy in such a case is by appeal. It is very true, that when an appeal is given by statute from the judgment of any court, the party aggrieved must avail himself of the remedy which the statute' provides. Putnam v. Churchill, 4 Mass. R. 517. In the case before us, for aught that appears, Thomas Palmer never had notice of the pendency of the proceedings in the probate cou'r't, and that court never obtained jurisdiction over the person; the proceedings were ex parte; and thus, without any fault on his part, the opportunity for appealing was lost. Under such circumstances, it would seem extraordinary to urge that he was forever concluded* because he did not avail himself of his remedy by appeal.-
The right to impeach a decree thus rendered, in a collateral action, is fully recognized in the case of Smith v. Rice 11 Mass. R. 507. In that case, the court say: “ If it appear that the judge of probate has exceeded his authority; or that he has undertaken to determine upon the rights of parties, over whom he has no jurisdiction; whether the want of jurisdiction arise from their not being duly notified, not regularly before him, or from any other cause;
The comments made upon the case of the United States v. Arredondo, will apply to the case, of The State of Rhode Island v. The State of Massachusetts, 12 Pet. R. 657. It is said in the latter case, (p. 718,) that “jurisdiction is the power to hear and determine the subject matter in controversy between parties to a suit; to adjudicate, or exercise any judicial power over them.” And again : “ If the law confers the power to render a judgment or decree, then the court has jurisdiction ; what shall be adjudged or decreed between the parties, and with which is the right of the case, is judicial action, by hearing and determining it.” Admitting, in their fullest extent, the correctness of these propositions, it is quite obvious that the power to hear and determine the subject matter in controversy between parties to a suit, necessarily implies that the parties have been regularly brought into court; and if they have not, then the law does not confer the power to render a judgment or decree. In Grignon’s Lessees v. Astor, 2 How. 319, Mr. Justice Baldwin, in referring to his definition of jurisdiction as given in the two cases last referred to, says: “ This is the line which denotes jurisdiction and its exercise, in cases in personam; where there are adverse parties, the court must have power over the subject matter and the parties.” The supreme court of the United States, in that case, decide, that, in a proceeding to sell the real estate of an indebted intestate, there are no adversary parties ; that the proceedings are in rem, the administrator representing the land ; and that all the facts necessary to give jurisdiction to the county court who decreed a sale, having been sufficiently shown, that decree was to be held conclusive upon all persons interested. If
I have given to the two leading cases decided by the supreme court of the United States, and so much relied upon by counsel, a very careful and critical examination; and without questioning the correctness of the conclusion to which the court arrived in those cases, I am bound to declare, that the judge by whom the opinions were delivered, asserted principles which are at war with the opinions of judges and jurists, who have done much to illustrate the jurisprudence of this country; and Which, if correct to the extent warranted by the language in which they are announced, conflict with the views of that court, at an earlier period of its existence. In the case oí' Rose v. Himely, 4 Cranch, 241, Chief Justice Marshall, uses this strong and clear language : “ The court pronouncing the sentence, of necessity, decided in favor of its jurisdiction; and if the decision was erroneous, that error, it is said, ought to be corrected by the superior tribunals of its own country.” “ This proposition certainly cannot be admitted in its full extent. A sentence, professing on its face, to be the sentence of a judicial tribunal, if rendered by a self-constituted body, or by a body not empowered by its government to take cognizance of the subject it had decided, could have no legal effect whatever.” “ The power under which it acts, must be looked into ; and its authority to decide questions which it professes to decide, must be considered.” “ But, although the general power by which a court takes jurisdiction of causes must be inspected, in order to determine whether it may rightfully do what it professes to do, it is still a question of serious difficulty, whether the situation of the particlar thing on which the sentence has
In the case of Elliot v. Piersol, 1 Pet. R. 328, the court hold this language : “ Where a court has jurisdiction, it has a right to decide every question which occurs in the cause; and whether its decision be correct or otherwise, its judgment, until reversed, is regarded as binding in every other court. But if it act without authority, its judgments and orders are regarded as nullities.” And again: “This distinction runs through all the cases on the subject ; and it proves that the jurisdiction of any court exercising authority over a subject, may be inquired into in every court where the proceedings of the former are relied on and brought before the latter, by the party elaiming the benefit of such proceedings.” It would certainly be difficult to reconcile these views, which are so fully sustained by a long train of decisions both in England and in this country, with the opinions of the distinguished judge in the case of Grignon’s Lessees v. Astor, and also in United States Bank v. Voorhies, 10 Pet. R. 449.
In the case of Perry v. Brainard, 11 Ohio, 442, it was held, that the county court were not authorized to appoint a guardian to a female over twelve years of age, unless she refused to appear and make choice of one, after notice to her for that purpose.
In Clark v. Holmes, 1 Dough Mich. R. 390, this court, after a careful review of the authorities, held, that courts of special and limited jurisdiction, when proceeding to exercise the powers conferred, must have jurisdiction of the person, by means of the proper process or appearance of the party, as well as of the subject matter of the suit; and that where they have no such jurisdiction of the cause or person, their proceedings are absolutely void. And in the conclusion of the opinion in that case, Mr. Justice Goodwin said : “ As far as authorities have come under my view, it would seem that the jurisdiction of special inferior tribunals, at least, may be inquired into in respect to their authority over the person, as well as the subject matter; and the want of jurisdiction may be shown by evidence, even when it tends to contradict the minutes or dockets which those tribunals may keep as records of their proceedings.” It is unnecessary to go so far in the case before us, or to affirm, that the rule as laid down, is applicable to the records of the probate court, inasmuch as it no where appears that a citation issued, or that jurisdiction was obtained over the person of Thomas Palmer.
A brief reference to one or two other cases will conclude my review of the many authorities cited by counsel in argument. Brittain v. Kinnaird, 5 E. C. L. R. 137, was strongly relied upon to uphold the decree of the probate court. A careful examination of that case, however, will show the grounds upon which the court held the conviction in the inferior court conclusive. A new trial was moved, for the reason that the magistrate had, by the act under which the proceedings were instituted, no power to
In Ackerly v. Parkinson, 3 Maule & Selw. 425, the party appeared, although the citation was defective in some ■formal particulars. This fact distinguishes that case from the present.
But I am admonished by the length to which this opinion has been drawn out, to bring to a close the discussion of this important feature of the case before us. I have bestowed upon it much labor and consideration, and the conclusion to which I have arrived, is, that it was competent for the court below to receive evidence that Thomas Palmer was, at the time the order was granted appointing a guardian, over the age of fourteen years, unless it shall further appear that he had legal notice of the proceedings ; in which case the evidence would be incompetent.
From what I have had occasion to say on this branch of the case, and especially from a view of the authorities cited, my views of the other branch of the proposition I have been considering, will have been anticipated. It is very true that the record of the probate court is, in some respects, informal; nevertheless, I think the decree is sufficient to bind such of the plaintiffs as were under the age of fourteen years ; and that a formal finding of the fact that they were under fourteen, was not necessary to be inserted in the decree, to render it valid. We must intend that the probate court had sufficient evidence of the facts upon which the decree was founded. That evidence it was not necessary to spread out upon the record. All
It was suggested in argument, that if no citation in fact issued to Thomas Palmer, and if, in point of fact, he had no notice of the pendency of the proceedings, yet, from the relation in which he stood to the guardian who was appointed, and from the circumstance that he lived with her for several years, and received his proportion of the money arising from the sale, he would be considered as acquiescing in the appointment. No such facts appear in the case before us, and we therefore express no opinion as to the effect of such evidence when it shall be produced.
3. Another objection was, that the deed of the guardian was void because the husband did not join in its execution. To this we answer, that it was not necessary that the husband should join. This follows from what we have already said upon the first point presented in the case made. Besides, it is quite clear that the husband had no interest in the premises conveyed; his execution of the deed, therefore, was unnecessary. On the part of the wife it was the mere execution of an authority in which neither she nor her husband had any beneficial interest.
4. The last objection to the regularity of the proceedings by the guardian in conducting the sale is, that the notice of sale given was insufficient, and was given before the bond was executed.
The statute requires, that, before making sale of any real estate by a guardian, a bond shall be given with sureties, and thirty days’ notice of the intended sale. (See ante, pp. 437, ’8.) An oath is also required. (See ante, p. 440. § 18.) The requirement in respect to the bond and notice, is contained in a proviso, and may be considered is a limitation or restriction upon the authority
Ordered certified, that, as to Thomas Palmer, one of the-plaintiffs, the motion for a new trial should bq granted ; but that, as to the other plaintiffs, it should be denied; and that the defendant, as to them, was entitled to judgment-