Richardson v. Farwell

49 Minn. 210 | Minn. | 1892

Vanderburgh, J.

The plaintiffs claim to own the land in controversy as heirs at law of their mother. In the year 1871, the plaintiffs then being minors, residing in the state of New York, one George W. Eichardson, of the county of Westchester, in that state, was duly appointed guardian of the person and estate of each of the plaintiffs by the surrogate of that county. They were then seised of lands in the county of Eiee in this state, as well as of the land in question here. In September, 1871, an authenicated copy of the letters of guardianship was filed in the probate court of Eice county, and a power of attorney was duly executed by him, running to George W. Gilmore, of that county, in due form, authorizing and empowering him to sell the lands of the plaintiffs in the state of Minnesota, and to act for him in the premises, which power of attorney was duly recorded. Thereafter such proceedings were duly had in the probate court of Eice county that the guardian was duly licensed to sell the lands of plaintiffs lying in each county; and thereafter, in pursuance thereof, Gilmore, the attorney in fact, caused a notice of sale to be posted and published in the county of Hennepin, the land in Eice county having been previously sold. In pursuance of such notice, the land in question here was bid off and sold to the defendant for the sum of $1,400. ■ The sale was afterwards confirmed by the court, and the guardian’s deed executed to the defendant in due form, as directed by the court. It is claimed by the plaintiffs that no title passed by this deed, because of irregularities and defects in the notice of sale.

1. The notice recites that the sale would be made, in pursuance of an order of license made on the 4th day of December, 1872, by the probate judge of Eice county, whereas the order had been previously made, and the order of tlie date referred to was the order extending the time for the sale of the real estate for which license had already been given. The error is immaterial, and was not misleading, because a reference to the last-named order would have led to the previous order. And the notice would have been good without reference to the date of the license.

2. The notice states that the terms of sale would be made known at the time and place of sale. Whether this was strictly proper or not, the objection does not go to the regularity or validity of the notice, as such, of the time and place of sale, and did not make the notice void, or leave the court without jurisdiction to confirm the sale.

3. The notice recites that “the undersigned, guardian of Lewis P. and Anna M. Eiehardson, minors, will on the 4th day of April, 1873, at one o’clock in the afternoon, at the office of the register of deeds of Hennepin county, in the city of Minneapolis, offer for sale at public vendue the following described lands, to-wit: The undivided one-fourth (J) of the north half (,}) of the north-east quarter (N. E. J) of section twenty, (20,) township twenty-nine, (29,) range twenty-four, (24.) * * * [Signed] Geo. W. RichaRdson, Guardian. By Geo. Gilman, Attorney in Fact for Guardian. ” The further objection is made that the attorney’s name is not correctly given, his name being “Gilmore,” and not “Gilman.”

The notice being authoritatively signed by the guardian, who was in fact duly authorized to make the sale, the error did not vitiate the notice. It would have been good without the attorney’s name. Neither that omission nor the failure to record the power of attorney to Gilmore before the sale belongs to that class of errors or defects which go to the jurisdiction, or render the notice void. 1878 G. S. ch. 57, § 51. The sale is not open to collateral attack by reason of any of the errors named.

4. It is also objected that the real estate sold is not described with common certainty, reference being made to the omission of the county and state in the notice. But it is admitted that land of that description, by government subdivisions, is within the county of Hennepin, where the land was sold, and where by statute it was required to be sold; and, being land of the minors referred to, the description was not presumptively misleading.

There could be no other corresponding description within the county or state, and this the court will take notice of. The description was sufficient. Quinn v. Champagne, 38 Minn. 322, (37 N. W. Rep. 451;) Sperry v. Goodwin, 44 Minn. 210, (46 N. W. Rep. 328.)

5. It is also objected that there is no sufficient proof of the publication of the notice in question in a newspaper printed in that county. Upon this question the finding of the court was in the defendant’s favor. Owing to the destruction of newspaper files, and an apparent error in the affidavit of publication, the evidence received upon this point in the trial court was partly oral. It was necessarily to be determined as a question of fact upon the evidence, and we are agreed that the evidence is sufficient to sustain such finding.

There are no other points deemed worthy of special notice. The writer will, however, add that, in his opinion, if there had been fatal irregularities in the proceedings, since the property was purchased in good faith, and for a full consideration, no relief should be granted to the plaintiffs except upon the condition of reimbursement by them of the consideration money paid, with interest and taxes. Bright v. Boyd, 2 Story, 605; Blodgett v. Hitt, 29 Wis. 188, 191, and cases.

(Opinion published 51 N. W. Rep. 915.)

Judgment affirmed.