Tharp v. Brenneman, 41 Iowa 251

Tharp v. Brenneman

41 Iowa 251 | Iowa | 1875

Beck, J. —

i juhisdiccimicy ofSsm-1 vloeI. It is first insisted that the judgment and proceedings of the county court, under which the administrator’s sa^e aT1<^ c^ee<^ were had, are void because of want °f S8rvice of the notice as required by law. The statute in force at the time. requires, “ when the defendant is a minor under the age of fourteen years, the service must be made on him and also on his father, mother or guardian, and if there be none of them within the state, then on the persons within the state having the care and control of such minor, or with whom he shall reside, or in whose service he shall be employed.” Eev., § 2828. The return of service found of record fails to show in words, that it was served upon mother, guardian or person having the control of the plaintiffs, who were then minors under fourteen years of age. It shows service upon the minors themselves and also upon their mother, but does not state the fact of' relationship. We are. not prepared to hold that the return fails to show a sufficient service. But the question raised may be disposed of without deciding this point. The judgment of the court ordering the sale of' the lands shows that the sufficiency *254of the service was determined. There being a notice, which the court adjudged lawfully served, the proceedings cannot be regarded as void for want of jurisdiction on account of irregularities appearing in the record, which affect the service. We will presume that due proof of all matters necessary to be shown was made to the court upon which the adj udication of the sufficiency of the service was had. Shawhan v. Loffer, 24 Iowa, 218; Pursley v. Hays, 22 Iowa, 11; Cooper v. Sunderland, 3 Iowa, 125.

II. It is next insisted that the lands were conveyed to the purchaser under the administrator’s sale, to be held in trust for plaintiffs. There is an entire absence of evidence to support this claim — certainly an entire absence of written evidence, which is demanded by the law, as it is an express trust which is attempted to be supported.

2. rowEK of yeyancé." III. The purchaser of the lands at the administrator’s sale was the father of one of the plaintiffs and the grandfather of the others. He executed to .defendant, to whom the lands were afterward conveyed, a power of attorney authorizing him to convey the lands to plaintiffs Upon certain conditions and for certain purposes. Plaintiffs insist that under this instrument an interest in the land vested in each of them. We are of a different opinion. The instrument is a simple power without words of conveyance. The authority to convey conferred thereby was never exercised, and the power itself by proper instrument was revoked.

IY. It is claimed that no payment for the lands was made under the administrator’s sale. This position is certainly not sustained by the record. It very clearly appears that the administrator was charged with the amount for which the lands were sold, and that plaintiffs received, in the distribution of the money remaining after payment of the debts of the estate, a part of the proceeds of the sale of the land.

Affirmed.