15 Fla. 66 | Fla. | 1875
delivered the opinion of the court.
James L. Winter, executor of thd last will and testatnent of J ames Winter, deceased, filed his petition in the Circuit Court of Duval county, in the -year 1857, alleging that the land which the testator directed should be divided between the devisees under the will could not be equally, fairly and beneficially divided. The parties interested in the estate were named defendants in the petition, and among them was the plaintiff in this cause, who was at'that time an infant about eighteen years of age and a resident of the State of South Carolina. A sale was had under these proceedings, the order for the sale being dated the 22d of October, A. D. 1858. The defendants, Price, Howejl and Hall, were purchasers at said sale and now claim interests in the land under the sale. No objection is urged in this action-to the sufficiency of the petition in these proceedings.
The plaintiff Winter, through this action, seeks to set aside this sale upon several grounds. He insists that as to him the sale is void for two reasons :
■ First, • Because the court did not-have jurisdiction of his person; that he was served with no process; that, although he was a non-resident infant, no publication was made and that no guardian ad Mtem was appointed.
Second, Because the executor was interested in the bids .by which the defendants acquired their interest in the land. Plaintiff also charges fraud and collusion between several parties to the proceedings, and also insists that there are such errors and irregularities in the proceedings as require the sale to be"set aside in his behalf.
The irregularities complained of are that his statutory guardian, who was permitted to appear and represent him,
We examine these questions stating the case as it appears from the petition and the proceedings for sale in the Circuit Court, and the record and the evidence in this action.
The question of jurisdiction and the alleged irregularities we consider first, as they can be more readily embraced under the same head.
It appears from the record of the proceedings that Frederick Yon Santen, the statutory guardian of the plaintiff, acknowledged service of citation for the plaintiff, that he filed an answer alleging infancy, denying all the allegations in the petition, and submitting his interest to the court. Without any formal appointment of a guardian ad Utem, the citation was served upon the statutory guardian who appeared and defended the action, putting in the defences required by the statute.
Two questions arise here. Was it necessary that the citation should have been served upon the infant 2 If not, does not the appearance of the statutory guardian, his recognition by the court and his defence of the suit, constitute him a guardian ad Utem without the formality of an appointment ? and is this not sufficient under the statute to give jurisdiction 2
Let us understand precisely and accurately the nature of tho subject which we are treating.
The Circuit Court in the proceedings for the sale was dealing with the estate of a deceased person and the inheritance of an infant. What were its powers in reference thereto 2 Even admitting that in this proceeding the Judge of the Circuit Court was exercising chancery poweVs, which we think is not the case, as it is a special proceeding in which chancery powers are not brought into action', still
In proceedings under the statute it is thus apparent that á compliance with the enactment is sufficient. If the act
To acquire jurisdiction of infants, .whether’ they.be resident or non-resident, the act requires the appointment of a guardian ad TAtem. To acquire jurisdiction of .adults the act requires a citation to resident heirs and a notice by publication to non-resident heirs. '
It is welkin construing such statutes as this to trace their history. It is seldom that yon cannot find in the older States statutes similar' to these regulating such matters in the younger States, and if such statutes have, in the States from which they are derived, received a judicial construction, it is generally a safe plan to adopt that construction.
The next question which arises is, was the infant in these proceedings for the sale represented by a guardian ad litem ? It appears from the record that F. Yon Santen (who was the general guardian of the plaintiff) in the proceeding, by petition, acknowledged service of-the citation for plaintiff,'that he filed an answer alleginghis infancy, and that in such answer he denied all the allegations of the petition, and that the court
In Windham vs. Windham, 3 Chy. Reports, 12, an indirect attack was made upon a sale under the decree of a court of equity, whereupon the Lord Keeper remarked : “ You blow up with gun. powder the whole jurisdiction if such a purchaser is not protected.”
In Letcher vs. Letcher, 41 Ala., 39, the Supreme Court of that State, when asked to look into irregularities and errors attending a sale as against a purchaser, remarked : “We cannot assent to such a proposition. The maintenance of it would lead to consequences alike absurd and injurious. It would make a strict compliance-with a large number of statutory requirements the unyielding standard of the validity of all orders of sjile. Some of these requisitions pertain to matters not evidenced by the record. For example, a decree of sale would be void if the guardian ad litem was ot kin to the administrator. One desiring to purchase at the sale would be unable to ascertain by an examination of the record and papers whether the title would be valid.”
The purchaser need look no further than to see that the court has jirrisdiction of the subject matter and parties. 47 Ill., 290; 11 Mass., 227; 1 Peters, 340 ; 2 ib., 168 ; 3 Ohio, 560; 4 Ib., 159; 13 Ga., 10 ; 10 Peters, 475. In 3 Wall., 406, the Supreme Court of the'United States was asked to look into the proof as to a fact in issue under the pleadings in a proceeding for a sale, the record of which was presented
It is, however, insisted that the executor, Winter, was interested in the bid of Bowden with Miles Price, and that for this reason the sale ' was void. The testimony upon that question was substantially as follows : Emory, one of the commissioners, says that it was understood by him, at the time of the sale, that Miles Price and James Winter, who was the executor, were desirous of purchasing the Dell Bluff tract, that the executor could not be a bidder under his oath, and that Bowden -was the purchaser for Price and Winter, and all the matters of said sale were arranged in accordance with such understanding, Col. J. P. Sanderson, the attorney for the estate, so counselling and advising. Iioeg, the other commissioner, says that it was his understanding that Miles Price and Winter bought the property. This, ho says, was shortly after the sale and before the war. The understanding of the people or the common idea of a community as to who are interested in a sale capnot be accepted as a proper or legal method of establishing that fact. What may have occurred in the office of the attorney of the executor, and the understanding between the executor and his attorney, is no evidence against Price, and it does not appear that Price was at any time present. Howell states that he heard Price say that Bowden bid off the Dell Bluff tract for him (Price) and James L. Winter.
Anthony testifies that “ from what Mr. Price told him, he (Price) and James L. Winter bought the Dell Bluff tract at the commissioners’sale.” This is but the statement of the witness’s own conclusion from his conversation with another.
Teresa O. Winter, the widow of the executor, testifies that she was always under the impression that her husband and Miles Price had bought the entire Winter tract in partnership, and that in a recent conversation with Mr. Piúce, he told her that he' and her husband had bought the tract together.. It is thus seen that no witness testifies to what extent Winter was interested, and that the only testimony in the record as to this matter which is entitled to consideration is that of Anthony and of the widow of the executor. 'The testimony of the widow is that of an interested party.
Bowden, who bid off the land, testifies that he bid it off in his own name, but at the request of Price;'that he looked to Price to make the payments; says he, “ I considered the amount bid the full value of the land, and if I had not had as good a backer as Miles Price, I would not have bid that much for it. It was understood between me and him that lie was to make the payments.”
Miles Price testifies that he authorized Bowden to bid off the Dell Bluff tract for him ; that he was responsible for the purchase money, and made the cash payment, and that he subsequently bought the interest of most of the other heirs. He nowhere testifies, however, that there was an understanding between him and the executor, or that the execu-tor was to have an interest. It nowhere appears in the tes- ■ timony to what extent Winter had an interest, and it does ■.appear that everything that has been paid came from Price.
'There is no person in the suit who represents the interests hf Winter, the executor, if he had any, and, that he did have any interest, is certainly not a very'clear conclusion from this testimony.
Admitting, however, for the purpose of disposing of this case, that he did have some unknown interest, what is the i-.ule of equity applicable to the purchase of Price under such circumstances ? It is insisted by the plaintiff that such
The whole doctrine arises from principles of public policy.
It was insisted that there was fraud in fact upon the part of Miles Price. This opinion is already too lengthy and we do not propose to state and review the testimony upon this subject. We have carefully examined the entire testimony several times, and nothing can be found to justify such a conclusion.
The remaining questions raised in this case arise out of what has transpired since the sale. At the sale, Uriah Bow-den bid off what was known as the “ Dell’s Bluff tract ” for $6,075 — $3,000 to be jjaid in cash on the 1st of January, 1860, $1,537 50-100 on the 1st of January, 1861, and $1,537 50-100 on the 1st of January, 1862, the payments not made in cash to be secured by bond and mortgage. Two forty-acre tracts were sold to Wm. J. Hall for $200 — $67 to be paid in cash on the 1st of January, 1860, $61 50-100 on the 1st of January, 1861, and the balance on the 1st of January, 1862, the last two payments to be secured by
C. L. Emory, the acting commissioner, testified that Miles Price paid him on the Dell’s Bluff purchase $1,528, and that he paid this amount to the executor, James L. Winter. This payment, it .appears, was made in July, 1860. This sum was the ¿mount due as cash after deducting the amount due to the wife of Miles,Price from this sale and from the estate, she being a daughter of the testator and under the will entitled to a share. No deed was executed at the time of the first payment, and no mortgage was given for the other sums due. The war interrupted any further transactions between the parties, one of the commissioners for the greater portion of the time being North and the other parties South. After the war, and in 1866, the commissioner Emory having returned in December, 1865, a deed was executed by-the commissioners conveying the land to Bowden, and Bowden subsequently executed a deed to Price. There was no mortgage executed by Bowden or Price for any balance due. As a reason for this, Emory, the commissioner, states that the relinquishment of all the heirs and distributees of the estate of James L. Winter or of their legal rep
In reference to the entire interest of Winter after the sale, Price insists that he paid his guardian the amount that was coming to him during his minority, and that since his majority he has had a full settlement with Winter, having paid him the amount due ; that Winter, with a knowledge of the sale by the guardian and by the court, has received these sums with the knowledge that they represented his interest in the land derived from his father. If these are the facts, then it is clear that there is no case made by the plaintiff, not only as against Price, but as against the other defendants also. This,is denied by the plaintiff. The determination of this question involves the consideration of
Miles Price, the defendant — I agreed with the heirs to purchase their residuary interest at an estimated value, five hundred dollars. I got Mr. Jaudon to go to the probate, office and ascertain what was due each heir. They had approached me and asked me to buy them out. . I then paid them all except James L. Winter and Henry Jaudon. They accepted the payments and appeared satisfied. This is also the testimony of DaCosta. In the same way I purchased the plaintiff’s interest from Yon Santen his guardian. I paid Yon Santen in Jacksonville and Columbia county bonds and by transfer of stock in the banp of St. Johns. I paid to Yon Santen, as the representative of his rvife, who had an equal interest with the plaintiff, the same amount I paid him as guardian and the representative of his ward, the amount being five hundred dollars in stock and bonds. These deeds of the guardian dated July 13th, 1861, purporting to transfer the interest. of his ward in the land to Price, are in evidence.
It appears-from the testimony that the plaintiff, after he had attained his majority and in the year 1863, came to Florida for the purpose ■ of looking after his interest in his father’s estate, and while there took charge of at least a portion of his negro property, receipting to his guardian.. After the war, and in 1871, he moved to Florida.
The plaintiff testifies, “ I have never had any settlement with my guardian. I demanded a settlement with him before I came. He gave me as a reason for not settling that there was nothing for me, that Sherman, when he came through Orangeburg, had destroyed all his papers.” Notwithstanding this statement of the guardian, he believed he owed him for money received from his father’s estate for the sale and hire of property coming to him under the will. This witness states, “I applied to Mr. Yon Santen at the instance of Mr. Miles Price for an order on Mr. Miles Price
No. 29, King Street, Charleston, S. C., April 18, 1871.
Mr. Miles Price will please pay to Samuel A. Winter, Esq., the one-half of the net proceeds of the sale of the St. John’s bank stock which he may have disposed of. Mr. Miles Price is hereby authorized by and with the consent of Mr. Samuel A. Winter to sell the bank stock to the best advantage he may think proper. P. Yon Santen.
Of this order, which wras sent him by his former guardian by his written request, (see his letter in Yon Santen’s testimony,) he says : “ I recognize this as the order sent me. It was inclosed in the following letter:
“ Charleston, S. C., April 18, 1871.
“Mr. S. Winter, Jacksonville, Fla.:
“ Dear Sir : Your letter of the 15th inst. is to hand. You seem to be surprised that Mr. Price had $1,000 worth of
“ Yoiir brother, *F. Yon Santen.”
“ I had other reasons to believe that my guardian owed me. There were three or four receipts for negro hire given to James L. Winter, not accounted for to me, and I could find no account of them in the probate court. From 18601 have been supporting myself and have been no charge to my guardian. Before coming bach to Florida, 1 hnew nothing of the sale of the real estate of my father. J hnew nothing that had tremspired about it. Since I came to Florida, I have in no way knowingly consented, assented or approved by word .or act the sale or disposition of the real estate of my father, James Winter, deceased. As soón as I ascertained the condition of affairs in ’relation to my father’s estate, I applied to counsel for legal advice and proceeded to. seek my remedy by law.”
Upon cross-examination, this witness states : “ I sold the negro after I became of age in 1863, but turned over the money to Yon Santen. The interview between me and Mr. Price was immediately after I came back to Florida in 1871, within about ten days after. I have no recollection of reading the papers then, nor that Mr. Von Bcmten’s name toas
The endorsements on the four papers shown by Price to Winter were as follows :
Land title, F. Yon Santen, guardian, to Miles Price.
Land title, Frederick Yon Santen, guardian, of Samuel A. Winter, to Miles Price.
Land title, F. Yon Santen to Miles Price.
Receipt of F. Yon Santen and Samuel Winter of all due- and coming from James Winter’s estate, deceased.
There were three deeds, executed by the guardian, one purporting to convey the interest in the Dell’s Bluff, one the interest in the Alachua tract, and the other his interest in the. eighty-acre tract.- The paper endorsed “ Receipt,”' &c., was a certificate setting forth that Yon Santen, the guardian, had transferred to Price the entire interest of his ward in the property.
The wife of Mr. Miles Price, who was present, testifies as to this matter .as' follows : “ There was a conversation at our house between Miles Price and Samuel A. Wintez-, in relation to some bonds. They were sitting in the piazza. Mr. Price handed Winter a paper in writing, which paper Winter read in my presence. This was soon after' he came' to Florida after the war.” Upon cross-examination the witness says: “ Winter did not'read the paper aloud. My husband said: ‘ Here, Sam, is a paper I got from Yon San-ten.’ I think that there were other papers handed hizn at the same tizne. I do not recollect that any one else was present except Mr. Wintez-, Mr. Pz-ice and myself and the ■children. Mr. Price told Mr. Winter that Mr. Bours had the bonds, and if he would get an order from Yon Santen he would hand them over to him.”
Rhoda Jane Adams, who was pz-esent, tesifies ’as follows ; “ I was hired at Miles Price’s at the tizzie ; was an employee of his. I saw Mr. Pz-ice give Mr. Winter sozne deeds, which he said was his landed propez-ty, azid told him if he would
The testimony of Von Santen, so far as it has a bearing on the transaction, was as follows: He recites the sale and consideration made by him as guardian in July, 1861, which has already been stated, and denies the receipt of any money from his ward during the war. He gives the letter of Wintér to him, requesting an order for the stock and bonds,, which was as follows :
“Jacksonville, Fla., April 15, 1871.
11 Mr. F. Von Santen, Charleston, S. C.:
“ Mv I)ea*r Sir : 'Since my arrival here Mr. Price informs me that there is bank stock here to the amount of one thousand dollars, half of which is mine. Not long since he took up the said stock for you, having paid $250 for it. The situation in which I am now placed, being without any money at all, urges me to request you to send me an order on Mr. Price for nvy portion, which I should have had, by rights, long ago, * * * * * * * *
“Very truly yours, S. A. Winter.”
“ I replied t,o this letter and sent the order as desired. Smnuel Winter must have known before he came to Florida since the war, and before he received the bonds, that the lands of his father’s estate had been sold, and that Miles Price had purchased the Dell Bluff tract. He has heard it from me and his sister Emma, m/y wife, in 1861, after the sale was made. He has heard it from me and his sister Emma at various times. He was told it by his sister Martha, now Mrs. Haddock, and Mr. Daniel Howell, in, the winter of 1870, at my house.”
Upon cross-examination, this witness says : “ I had no settlement with my ward since his majority. I considered
If the plaintiff knew at the time he received these bonds and stock that they represented his share in the sums due • by the various purchasers of the land, and was aware of the act of his guardiah in executing the deeds, then he caunot now recover a part of the land or the proceeds of sale. Defendant’s statement that the plaintiff knew that the stock .and bonds represented his interest in the land is corroborated by the testimony of his wife, by the witness Adams and all the attending circumstances. The account given of the matter by plaintiff is entirely unreasonable. .The conclusion from his statement is that he went to the defendant’s residence; that while there some papers were shown ; that he was told to get an order from his former guardian, and some stock and bonds would be given him, and that during the whole time he did not ask, nor did Price tell him, what all this was about, or intimate to him on what account and in what manner he was entitled to these moneys. The plaintiff says that Price did not tell him on what account the sum -was due him, nor did he ask him. Winter was at the time thirty years of age, and a man, as his own testimony shows, of business experience. It is not probable that he would expect Price to be making him a present, nor did he have any reason to suppose that Price owed him anything except as the purchaser of this land ; and this he knew, as he states that he knew that Price was in possession, claiming title; and Yon San ten states that Winter was frequently told of Price’s purchase by -himself and by his (Winter’s) sisters. In his letter to Yon Santen he seems to have had some knowledge of the matter. He knows something as to the respective interests of his guardiarr and himself in this stock, and his language implies knowledge of at least the date to which he became entitled to his portion, as he says
“ State of Florida, 1
“ County of Duval. )
, “ Be it known to all whom it may concern, that I have this day sold to Miles Price all my right, title, claim and interest as an heir of James Winter, deceased, to tlie assets of said estate, and also, I have, as guardian of Samuel A. Winter, minor, sold his like claim and interest o± said estate to Miles Price. F. Yon Santen.
“Witness : Wm. Jaudon, A. W. DaCosta.”
In his cross-examination he says: “ I cannot swear that there was nothing said between. Miles Price and myself in relation to the Dell’s Bluff place in our conversation. I knew that Miles Price was in possession and claimed title, and I haddieard that his title was not good.” He intimates in his testimony that he thought his guardian owed him, and the connection in which it is stated leaves it to be inferred that he thought the stock was upon this account, , while in another part of his testimony he admits that his former guardian had told him that lie owed him nothing; and his guardian swears that such was the understanding between them. This would seem, to bo probable, as eight years had passed since his-majority, and no action liad ever been taken by him against his guardian. In no event would
This disposes of all the questions in the case. Judgment reversed.
The judgment of the Circuit Court should have been for the defendants, and the case is remanded with instructions to enter such judgment.