24 Iowa 217 | Iowa | 1868
Although the principles involved class of cases are well settled by frequent decisions, it is not at all strange that we are so often called upon to apply them in the adjudication of titles. It is accounted for by the great and often rapid increase in the value of lands. An executor or guardian, in good faith and, as it seemed at the time, for the best interests of all concerned, was empowered to sell the lands of the estate or of his ward. The lands were of inconsiderable value and were sold for what was, at the time, a fair and honest price.
A few years increases their value many hundred per centum, and, by the erection thereon of valuable buildings, and the planting of fruit and ornamental trees, what was unproductive and uninviting prairie of little value, becomes a beautiful and enticing farm, a fortune to its possessor. It is not wonderful that heirs and wards arriving at majority, and seeing property once their’s, now of such great value and so inviting, should be anxious to find something in the proceedings under which their property was sold that will render the sale void and restore to them the lands which they are ever ready to believe were unlawfully taken from them.
There is no pretense, that the thing which equity and the law does most abhor — oppression of the fatherless infant — was attempted toward them. They rely upon rigid, unrelenting rules of law, and sternly, coldly, seek advantage through them, over upright dealings and honest purposes of others. While the rules of law cannot be deviated from, even to avert such results, yet it may be said, to the honor of our system of jurisprudence, they seldom lead thereto.
In proceeding to examine the objections made to the validity of defendant’s title, they will be noticed, not in the order in which they are made in the argument of the attorney presenting them, but in that order in which, it would seem, they naturally arise.
The referees made their report June 16, 1853, the order to sell was made July 13,1853. Sections 1394 and 1404 were repealed July 1, 1853, without any saving
The ready answer to this is, that, under section 26 of the Code of 1851, the repeal of the sections in question did not affect the right of the widow to dower as provided therein, nor the proceedings commenced to set it apart thereunder. The right as well as the remedy survived. See Innskeep v. Innskeep, 5 Iowa, 204; Burk v. Barron, 8 id. 135.
The petition of May 9, 1853, gave the court jurisdiction of the subject-matter, concerning which its powers were invoked, which was not lost by the repeal of said action.
If such determination be erroneous, it should be corrected by appeal, and cannot be reserved as a ground of attack upon the judgment in a collateral proceeding.
Admitting, that the heirs should have been made parties by name, and that the notice should have been so addressed to them, yet, as the sufficiency of all the proceedings was determined by the County Court in the final order or decree, the objection cannot be urged in this collateral action.
It appears, that a sufficient application was filed by the widow in the County Court, averring sufficient facts to call into exercise the power conferred by law on that court; and that there was a notice and service thereof; the court solemly adjudged, in the final decree approving the deed of the executor, that all the proceedings were regular, and this was a matter properly before the court at that time for adjudication, and of which it was competent to adjudicate. It was the duty of the court, then, to inquire whether the proceedings the law required were regularly had. It adjudged they were. Exercising presumptions in favor of the regularity of the proceedings of the court, they must be taken as regular and sufficient, and the decree of the court ordering a sale of the lands, and finally confirming the deed, considered as an absolute verity, not to be contradicted or impeached.
The foregoing principles applied to the facts, as presented by the record, are decisive of this case.
Many objections are made and urged against defendants’ title; all are disposed of by the application of the above general doctrines. Inasmuch, however, as they are presented with apparently great confidence and urged with ability, arid their disposition may, in a degree, aid to settle the law concerning this class of judicial sales (a result very much to be desired), notice will be made of some of the more important ones.
It is quite unnecessary to consider other objections made to defendant’s title, as the case is disposed of upon the doctrine above announced. Neither is it necessary
The judgment of the court below will be reversed as to the decision against defendants, and in favor of plaintiffs, Sarah E. and Hannah O. Shawhan, and affirmed as to the decision in favor of defendant and against Greorge W. Shawhan.
A procedendo will issue accordingly.
It is not improper to remark, for tbe benefit of the reader who may not be familiar with our statutes, that, by a provision of the Code of 1851, section 26, the term "executor ” is extended to and includes administrator, and is so generally used. This peculiarity was copied into the Revision of 1860.
It must be confessed that the wisdom and necessity of dispensing with the use of a word so well understood as the term “ administrator,” and destroying the meaning of the other equally familiar word, “ executor,” has never been satisfactorily explained. The peculiar pride of the law as a science is its possession of terms enabling an exact, direct and concise expression of ideas. Tbis statutory innovation in the language of the law is without any known benefit and attended with much inconvenience,