22 Iowa 11 | Iowa | 1867
This controversy relates to one hundred and thirty-three acres of land, within the corporation limits of the city of Des Moines, many parts of it now covered with costly and valuable improvements. It once belonged to Hugh Pursley, deceased. Plaintiffs are his heirs (children), and are entitled to recover, unless their title has been divested by certain conveyances made by one of them in person, and by the other through their alleged guardian, John C. Jones. So that we may confine our examination to these alleged conveyances and their effect upon plaintiffs’ title.
She was married to Carr, March 11,1818 ; was twenty-one years of age, August 12, 1851; her father died April 23j 1850, and her husband; December 23, of the same year. In November, 1850, she, with her husband, agreed with her uncle (West), to sell to him her interest in the real estate in controversy, with other tracts, for about three hundred dollars, to be paid in horses, a wagon and some other property. They then resided in Dallas county, and it was then agreed that the husband should come to Des Moines, get the property, sign the deed, and that the wife would do so the first time she was down. He signed and acknowledged the deed, obtained the property, a part of it was left at his death, which the wife took into her possession and disposed of for the use of herself and family. .
On the 21st of July, 1851, she signed and acknowledged the deed, and it was then delivered to the grantee and duly recorded.
There was some effort to show that she executed the deed under duress, or that West was guilty of fraud in obtaining her signature.
The testimony, however, most signally fails to establish either claim. There was apparently the utmost fairness, the most perfect honesty throughout the entire transaction. A verdict in her favor upon this ground should have been instantly set aside, as against evidence.
The argument, as we understand it, however, upon which her counsel rely, is this: Carr conveyed his interest and received the consideration. This was effectual to pass his interest, and no more. The wife was not bound
Thus, somewhat at length, we have stated, as we believe fairly, the substance of appellants’ position.
Treated as the deed of & feme-covert, it is conceded that the acknowledgment is defective. The deed had never been 'delivered as the deed of Carr and wife, or either or both- of them, at the time she signed and acknowledged it. At this time she was a feme-sole, and, as such, the acknowledgment is sufficient; and it was then, for the first time, delivered. What, then, is there to impair or affect its validity ? There was no consideration, it is said. Suppose she had agreed, during coverture, to convey upon the payment of so much money, and the money had been paid to the husband. After his death, in accordance with her agreement (existing in parol), she does convey. Could she be heard to assert the want of consideration \ In such a case she but executes her agreement, and the payment to the husband (and especially when made with her knowledge and consent) is a payment to her, and the consideration becomes effectual. ■ It is not as though she had undertaken, during coverture, to convey jointly with her husband, the acknowledgment being defective; for then her rights are saved, not becaus'e. of the want of consideration, but because the formalities required by law, and the observance of which were essential to bind her as & feme-covert were neglected. Nor is it like the case. of Miller v. Wetherby (12 Iowa, 415),
If the wife had joined with the husband, at the time he signed the deed, and had duly acknowledged the same, there could be no question as to its validity, though the entire consideration passed into his hands, or under his control. Now, as there was no delivery of the deed, when executed by the husband, and when he received the consideration, but as she did, after she became dis-covert, duly acknowledge and then deliver the same, the title, in our judgment, as effectually passed as though she had properly joined with,the husband during coverture. There can be no doubt of this proposition: If she had joined in the deed during coverture, but under such circumstances as rendered it invalid (because defectively acknowledged, for instance) and the deed had been delivered, she could have made it effectual, by redelivery, after she became discovert. This doctrine is expressly asserted in the authorities most confidently relied upon by the appellants’ counsel (Miller v. Shackelford, 3 Dana, 289; Perkins’ Treat., 154), and of its correctness there can be no doubt. The redelivery being shown in such cases, there remains no question as to the state of the title; and if, instead of a redelivery, the wife after she becomes a feme-sole, for the first time undertakes to, and does actually execute and deliver the deed, the case is still stronger in favor of the grantee. Upon this subject, generally, see Hill v. West, 8 Ham., 222; Goodright v. Stragpham, Cowp., 201; Duncan v. Hodges, 4 McCord, 239; Hudson v. Revett, 5 Bing., 388; Grout v. Townsend, 2 Hill, 554; Waring v. Smith, 2 Barb. Ch., 119; Ellerin
Turn we now to the other and more important branch of the case. Besides Mrs. Deford, Hugh Pursley left seven children, him surviving, and all minors, their names being Jacob, William, Eliza, Bachel, Elizabeth, Armanda and Mary. This action was commenced in July, 1863, the said Armanda and Mary still being miilbrs, But attaining their majority before the trial thereof, in February, 1865. It is claimed, that John C. Jones was, on the 7th of June, 1852, appointed, by the County Court of Polk county, guardian of the estate of said minor children, and that, after due application and under an order of said court, he sold the real estate in controversy at public
Defendants introduced the deeds made by the guardian, with the approval of the county judge indorsed thereon, omitting any reference or evidence, documentary or otherwise, showing the authority to thus convey, and, with some other testimony as to possession and the like, not necessary now to mention, rested their case. To the introduction of the deeds, plaintiffs, at the time, objected upon various grounds; but the objections were overruled, and the deeds admitted. As plaintiffs afterward offered to introduce all the records upon which the authority to sell was based, and as the consideration of the points made thereon necessarily involve most if not all of those made against the introduction of the deeds, brevity will be consulted by turning our attention to these records and those alleged defects. For it will be seen at once, if in view of these records (all embodied in the bill of exceptions) plaintiffs cannot now successfully impeach the sale, it becomes immaterial to consider whether the court did or did not err in admitting the deeds without preliminary proof. And if these records are in such a condition as to render invalid defendants’ title, plaintiffs’ rights are equally protected as though the deeds had been rejected until such proof was made.
It is idle, indeed it is a misuse of terms, to insist that the sale by the guardian was “ no sale.” He did sell the property; he did sell as guardian, at least, under a semblance of authority; and it is not like the act of a mere volunteer, selling without right, without an order, and without any effort or pi’etense of effort to obtain authority therefor. He did undertake to comply with the requirements of the law, and he was acting under the direction and control of a court to which the cognizance of such matters is intrusted by the statute. And it will therefore
In the following cases the property was sold by the administrator, and the questions arose in a collateral proceeding : Morrow v. Weed, 4 Iowa, 77; Long v. Burnett, 13 Id., 28.
And in the following the proceedings were direct to set-aside sales made by administrators: Little v. Sinnett, 7 Iowa, 324; Van Horn v. Ford, 16 Id., 578; Thornton v. Mulguinne, 12 Id., 519.
Cases under guardian’s sale, where the question arose collaterally : Frazier v. Steenrod, 7 Iowa, 339 ; Cooper v. Sunderland, 3 Id., 114.
Where the proceeding was direct: Wade v. Carpenter, 4 Iowa, 361.
Sales by sheriff and trustees collaterally attacked: Bosworth v. Farenholz, 3 Iowa, 84; Cavender v. Heirs of Smith, 1 Id., 306; S. C., 5 Id., 157; Bowen v. Lamb, 4 Gr., 468; Shaffer v. Bolander, Id., 201; Johnson v. Carson, 3 Id., 499 ; Sprott v. Reed, Id., 489; Burton v. Emerson, 4 Id., 393; Hopping v. Burnam, 2 Id., 39; Corriell v. Doolittle, Id., 385 ; Seely v. Ried, 3 Id., 374; Humphry v. Beeson, 1 Id., 199; Thatcher v. Haun, 12 Iowa, 303; Dutton v. Cotton, 10 Id., 408; Bank of Old
When the attack was direct: Leffler v. Armstrong, 4 Iowa, 482; Bridgman v. Wilcut, 4 Gr., 563; Coriell v. Ham, Id., 455; Cole v. Porter, Id., 510; Ralston v. Lahee, 8 Iowa, 17; Grapengether v. Fejervary, 9 Id., 163 ; Singleton v. Scott, 11 Id., 589; Boyd v. Ellis, Id., 97; Sypher v. McHenry, 18 Id., 233; Penny v. Cook, 19 Id., 538; Langworthy v. Campbell, Id., 568; Lowe v. Grinnan, Id., 192; Boker v. Chapline, 12 Id., 204; Sears v. Livermore, 17 Id., 297; Hodson v. Tibbetts, 16 Id., 97.
Sale for delinquent taxes, direct: McGahen v. Carr 6 Iowa, 331.
Collateral: Scott v. Babcock, 3 Gr. 133; Lardby v. Reid, Id., 419; Gaylord v. Scarff, 6 Iowa, 179; Bleidorn v. Abel, 6 Id., 5; Rayburn v. Kuhl, 10 Id., 92; Abell v. Cross, 17 Id., 171; Allen v. Armstrong, 16 Id., 508; Boardmam v. Bourne, 20 Id., 134.
There are still other cases, such as Broghill v. Lash, 3 Gr., 357; Carr v. Kopp, 3 Iowa, 80; Wheeler v. Edinger, 11 Id., 409; and Bristow v. Guess, 12 Id., 404, where, upon appeal, it was objected that there had been no sufficient service; and still others, like Gladson, Admr., v. Whitney, 9 Id., 267; Smith v. Dubuque Co., 1 Id., 492, where the objections related to the jurisdiction, growing out of the subject-matter of the litigation, which in their reasoning are somewhat applicable to the present discussion. But those before cited, with the numerous authorities therein referred to, cover the whole ground, and those of the latter class need not therefore demand more particular mention.
And now, before discussing or stating the principles recognized by these authorities, let us state the facts of this case, so far as they are urged by plaintiffs, to invalidate this sale.
Upon the presentation of the petition, it was ordered (the order reciting the names of five of the heirs, omitting Jacob and Mary, but still adding “minor heirs of Hugh Pursley deceased”) that it be heard at the next term, and that a copy of the petition and notice of the time of hearing be served upon said minors. At the July Term (5th), the further hearing was continued to the August Term. The notice to the heirs, attached to a copy of the petition, was directed to all of the heirs by name, and notified them that, on the 5th of July, application would be made to sell the land described in the within petition. As to the correctness of this description, there is no question. The officer’s return is that, on the 18th of June, he “ served the above notice by reading it to the above named William and Jacob Pursley, etc. (giving all their names), minor heirs of Hugh Pursley.” August 3d, 1852, the petition
The statute referred to is as follows : “ No person can question the validity of such sale after the lapse of five years from the time it was. made.”
Appellants insist that the statute has reference to voidable and not void sales, and is only applicable to appeals or writs of error, or some process bringing up the matter for review and reversal in a superior court.
The latter part of this proposition is most clearly untenable. If true, it gives five years after the sale to prosecute an appeal from the action of the County Court; whereas, we have a general statute (Code, § 131; Rev., § 267) expressly requiring such appeals to be taken within thirty days, and pointing out specifically the manner of taking the same. And upon no tenable or reasonable ground can it be claimed that section 1508 was intended to modify, change, or affect that relating to appeals. The remedy by appeal is provided for by section 131, of the Code (in force when this sale was made and approved), and it would violate every rule of construction to hold that this subsequent section, which says nothing about appeals or writs of error, which is not treating of that subject, was intended to extend the time, or give any different rule. There is nothing in the language justifying any such conclusion. To “ question the validity of such sale,” implies a proceeding other than by appeal. An appeal ordinarily brings before the court only the parties to the proceeding; in this case, the guardian and the ward. The purchaser would not be a party to such an appeal. This language, however, indicates the questioning of the sale, a proceeding against the purchaser, an attack upon his title. Than
There is a very clear distinction between a sale by a person not a guardian, with no pretence of appointment or authority to sell — a mere volunteer acting upon his own motive — and a sale by one duly appointed, who fails to comply with all the provisions of the statute. In the former case we should be very clear that section 1508 would not estop the heir from questioning the validity of the sale; for it is sales made by one having at least the semblance of authority which are intended to be covered by the statute. And if made by one having no authority, nor the semblance thereof, it does not come within either the letter or spirit of the statute. To thus extend the meaning of the statute, would render it, we think, justly obnoxious to the objection made by counsel, of being in conflict with the Constitution, which secures the individual in his property until taken from him by due process of law. For'if the heir, after five years (without reference to the question of possession), is concluded by a sale made by one acting entirely without authority, or the pretense thereof, then we know of no clearer case of judicial legislation ; no case which would more flagrantly violate the fundamental provision securing
But suppose the guardian is acting under a proper commission, and makes a sale without any notice, or pretense thereof, to the heir ; that the whole proceedings are conducted withodt giving or attempting to give him a day in court; that the purchaser does not enter into possession of the property, but the heir retains the same undisturbed, and, after five years from the time of the sale, the heir, directly or collaterally, attacks the same, will this statute protect the purchaser ? In other words, in such a case, could he use it as a weapon to take from the heir his inheritance? We clearly think not. For this, instead of making the statute one of repose, one to protect and shield the purchaser in his possessions, would, in legal effect, deprive a party of his .property, without notice, without due process, without the existence of that adverse possession which might impose upon him the duty of action, or .the taking of some step before the expiration of five years. It is very clear to our minds, that if the heir had no notice, and hence the court no jurisdiction, and no possession was taken under the purchase, the purchaser could not use the statute to protect him in his title. For if so, then, if the ward remained in possession notoriously, adversely and uninterruptedly, for ten years, the statute, which prohibits him from questioning the validity of the sale after the lapse of five years from the time it was made, would prevent the bar of the general statute on his part, and become an oppressive weapon on the part of his adversary, instead of a shield to protect him in his possession and purchase; and that the latter was the intention of the legislature, is, we think, most clearly inferable from the plain language of the enactment.
Thus far, we have had no difficulty. Take the case,
Turn, then, briefly to the facts of this case. The objections to the validity of the proceeding are: First, there is no sufficient caption to the County Court record. Second, no legal appointment of Jones, as guardian, for want of power to appoint for seven heirs jointly. The bond is joint, and hence is void. It is payable to the county and is not approved, so far as shown by any recitals of record. Third, the petition did not set out the names of the minors, and hence there was no jurisdiction. Fourth, the
These objections we do not propose to discuss seriatim. A general reference to them, it seems to us, will be sufficient to show that none of them go to the vital question of jurisdiction, except the sixth, which relates to the service. All the others relate rather to the regularity of the proceedings than to the question of power. And, once for all, let it be understood that such objections cannot avail to invalidate a title, when raised in a collateral proceeding, and especially when made for the first time after five years from the time of the sale, and where the purchaser took and held possession thereunder. Every case in this court hereinbefore cited enunciates this principle, and not one can be found in conflict.
And the same may be said of the want of caption to the County Court record. What is meant by this, we do not exactly understand. Every entry in the County Court records seems to be preceded by the date of the entry, and sufficient to show that it was made in the proper County Court. So the petition is directed to the proper tribunal, and in these respects we can see no departure from even the most technical rule.
If this application is to be treated as an original action in the County Court, we might concede that a petition against the “minor heirs of Hugh Pursley, deceased,” without more, and a notice in the same form, would be ineffectual to confer jurisdiction. This is certainly the substance of the ruling in Reynolds v. May (4 Green., 283), and Steamboat Pembinaw v. Wilson (11 Iowa, 479). And, though, in those cases, the objection was made on appeal, the reasoning used goes to the extent stated.
In this case, however, the notice was to the heirs, by name, and was served upon each.
The order of appointment, as amended, was alike specific in naming the heirs.
The proceeding was not commenced ’against them as the “ minor children of Hugh Pursley, deceased ;” but the petition uses this language merely as descriptive of the relation of the said Jones to the property, and those having an interest in it. -It is as though he had brought an action in his name, “ as guardian of William Pursley, etc.” (giving the names of all the heirs), and the petition had omitted the names, but described them in an abbre
That the name of Jacob was not entered with the others in the order of appointment, we give but little weight. It was manifestly a mere clerical omission, for the bond includes his name with the others. The subsequent proceedings were entirely regular, for the order made, but carried out what was originally intended. The petition to sell included all; the bond was for the benefit of all; and, to obviate all question, the order made, in terms, included him. As suggested, this hardly seems to us irregular, and it certainly was no more. The purpose intended, to make him a party to the proceeding, was sufficiently accomplished, and, beyond this, we will not inquire in this action. Doe v. Smith, 1 Ind., 458.
Upon filing the petition, the County Court ordered how service should be made, and that the same should be heard at the next term thereof. This was just what the law contemplated (Code, §§ 1501, 1502), and why it is insisted that such order was eoram non judiee we cannot imagine.
And that this general disposition of these several points accords with principle and authority,'sufficiently appears from the foregoing cases and rules.
Tlius, the power to decide being shown, this power is not lost or taken away because it may be improperly exercised. And hence, if the parties are properly in court, that these names are ordered to be inserted in a petition already filed, instead of filing a new petition; that there was a defective bond, either in the amount or formal conditions, received and accepted as good, however, by the court; that there may have been error in the conclusion reached upon the facts shown, all these and similar matters must be accepted as absolutely conclusive in a collateral proceeding; and this, whether the court is
. It must not be forgotten that, to the County Courts, at that time, as now, were given the power to appoint guardians, and to exercise a general supervision over their property, person and interests. Code, § 1273. So far, therefore, as the subject-matter was concerned, the jurisdiction was expressly given; and, if not exclusive, was at least general. If the matter to be adjudicated was brought before it by a proper petition or complaint, and the parties to be affected thereby wére duly notified thereof, then, by an .unbroken series of decisions in this State and elsewhere, while an appellate tribunal might correct errors thereafter intervening, there is no power to inquire into them collateral!y. See the cases before cited in this State, where the authorities are fully collected, and, particularly, Wright v. Marsh, Lee & Delavan (2 Green, 94).
In a word, the decided current if not uniform weight of the authorities, leads us to ask: First, did the court have jurisdiction of the subject-matter ? Second, of the parties? and, if so, the judgment, in the absence of fraud,
The party purchasing has a right to rely upon this conclusiveness of the judgment, and it would, we feel bound to say, unsettle half the titles in the State (and that greatly to the prejudice of infants and their estates) to innovate upon this well established and most reasonable doctrine. Let the guardian be held to strict accountability for his fraud or negligence or any conduct tending to the prejudice of his ward. Make him and his sureties respond promptly and adequately in damages; but it would, in our opinion, be as disastrous to the rights of infants and purchasers, as it would be in the teeth of principles long and well settled, to hold invalid, sales for every departure from some directory provision of the statute, or for every error of decision in courts ordering these sales.
The statute requires that the application to sell shall state the grounds thereof, be verified by oath, and a copy thereof, with a notice of the time at which such application will be made to the court, must be served personally upon the minor at least ten days prior to the time fixed for such application. Code, § 1501.'
The petition did state the ground, was duly verified, and service was made more than ten days before the time
We should be inclined to give more weight to this objection if the notice had been detached from the petition, and made no reference to it. But attached, as they were, we think it but a fair inference that they were treated as constituting one paper, and so served. The law does not require that a copy of the petition and notice should be left with the minor, but that he should be personally served. That the officer would comply with the statute by reading the same to the minor, or at least that the court might consistently hold this to be a good service, we entertain no doubt. Bor, at this time, the general statute regulating service did not require a copy to be given unless the same was demanded. Service, when made personally, was by reading. §1721, and see chap. 133.
Then, again, the statute declares that the proceedings of all courts of limited and inferior jurisdiction within this State, like those of general and superior jurisdiction, should be presumed regular, except in regard to matters required to be entered of record, and except when otherwise expressly declared. Code, § 2512. We know of no statute requiring the return of service in this class of eases, to be entered of record; or a recitation that due service was made, to be contained in the judgment; nor is there any expressly excepting County Courts, in proceedings of this character, from this general rule. Still, we are not to be understood as holding that if there was nothing to show service of any kind, we would indulge- the presumption that there was jurisdiction over the person; and yet this is the rule, as applied to a court of general jurisdiction. But when there is a notice and return of personal service, a defect in it, which the tribunal has held and treated as immaterial, ought not and cannot in view of the language of our statute, and following the clear current of authorities in this State, avail to defeat a title, where the .objection is raised for the first time in a collateral proceeding.' See the cases before cited, and particularly Cooper v. Sunderland (3 Iowa, 114); Morrow v. Weed (4 Id., 77); cases which, we may here say, have been frequently criticised in argument, but which, upon a re-examination, we feel bound to affirm in their essential principles, however
The great error into which counsel fall, is in'failing to recognize the distinction between a defective service and no service. If, in this case, there had been no service, what has already been said unmistakably indicates (waiving the five years’ limitations) that this sale would be held invalid. But there was a service; the return was, at most, irregular, such as might have been held bad on appeal. And after the County Court recognized its sufficiency, and approved the sale, made pursuant to its order, we will not, in this proceeding, inquire into its sufficiency. The proper persons were served ; the court had jurisdiction of the subject-matter, and hence it differs from those cases, where the wrong person was served (by a substi
It seems that the land to be sold by the guardian was surveyed and platted, the lots being numbered from one to seven, and a copy of the plat is a part of the record. The deed, under which the defendant Hayes claims, describes, by metes and bounds, one and one-quarter acres of one of these lots; and refers to the lot as “ lot (1) in the. survey of said land, being a part of the S. E. J, sec. 5 T. 78 R. 24 W. 5 P. M.” The other deed refers to the same survey by its date, and conveys all of said lot oná, after excepting, by metes and bounds, the parcel formerly conveyed to the party under whom Hayes claims.
Here there is no uncertainty as to the quarter section in which the land is to be found. Nor, with the aid of the plat of the surveyor, is there the least doubt as to the lot sold and conveyed. Indeed, with this we have the exact locality of the land.
It is conceded that if land is so described in a conveyance as to render its identity wholly uncertain, the grant is void. See Glenn v. Maloney, 4 Iowa, 315; Bosworth
Thus, at much length, we have passed upon the several points made by appellants’ counsel. Their importance to the parties, and the confidence with which they were asserted, mast furnish a sufficient excuse for noting many of these, apparently well settled by our prior adjudications.
Affirmed.