The following opinion was filed January 31,1893:
The controlling question in the determination of this case is whether the deed executed by the guardian of the plaintiffs to Johnson is a valid conveyance to him of the lands in controversy. If the question be answered in the affirmative, the judgment is right; if in the negative, it cannot be upheld.
Several irregularities and defects in the procedure which preceded the attempted sale of the land and the confirmation thereof, either of which; it is claimed, is fatal to the validity of the sale, are alleged on behalf of plaintiffs. One of these is, we think, well taken, and hence the others will not be noticed. Such defect is the want of a proper bond, as required by sec. 4004, R. S.
In the only bond given it is recited that “ whereas, the above bounden Ada L. Weld, in her capacity of guardian, has been licensed by an order of the said county court made on the 8th day of October, A. D. 1888, to sell all the real estate of said J. T. Weld, to wit, commencing at a point,” etc. Then follows a description of certain lands in Wau-
It results from the foregoing views that the sale of the lands to Johnson is invalid for want of a bond, and hence that the deed thereof, executed by the guardian to him pursuant to such sale, conveyed no title, and the title which descended to plaintiffs on the death of their father
Counsel for defendant rely upon the case of Mohr v. Porter, 51 Wis. 487, to sustain this judgment. In that case the guardian of an insane person, upon a proper petition, had obtained license from the county court to sell the real estate of his ward to pay his debts and the expenses of managing his estate. The guardian sold and conveyed such real estate, and duly accounted to the court for the proceeds thereof. After the ward became compos mentis, and his disabilities were removed, he brought the action to recover a portion of the lands thus sold and conveyed by his guardian. The order to show cause why the guardian should not be licensed to sell the lands of the lunatic was not published the length of time required by the statute. This court held (Cole, C. J., dissenting) that the defect in the publication of such notice did not go to the jurisdiction of the court of the subject matter of the proceeding, but only to its jurisdiction of the person of the ward, and that, as to him, the proceeding to obtain such license was not adversary, and he was represented therein by his guardian, whose petition gave the court jurisdiction of his person.
The above case overrules that of Mohr v. Tulip, 40 Wis. 66, which arose out of the same proceedings in question in Mohr v. Porter. It was held in Mohr v. Tulip that the defective publication of the order to show cause why the guardian should not be licensed to sell the real estate of his ward went to the jurisdiction of the court over the subject matter of the proceeding, and rendered the sale pursuant to the license thus obtained invalid. The case was decided by Mr. -Justice Cole and the writer of this opinion. After that decision the supreme court of the United States decided the case of Mohr v. Manierre, 101 U. S. 417, which rejects the rule of Mohr v. Tulip, and adopts the rule held
But the reason of the rule adopted in Mohr v. Porter does not extend to defects of procedure in the matters specified in sec. 3919. All those are, as to the ward, adversary proceedings required for bis protection, and one of the most important and indispensable of them is that the guardian shall give the bond required by sec. 4004. None of those proceedings can be waived by the guardian so as to bind the ward by such waiver, and the latter may always be heard to allege that any of them have been omitted. The Mohr Cases, above cited, hold nothing to the contrary.
By the Court.— The judgment of the circuit court is reversed, and the cause will be remanded with directions to that court to find the value of the timber taken from the lands in controversy by the defendant company, taking additional testimony on that subject if the court deems it necessary to do so, and to render judgment for the plaintiffs as indicated in this opinion.
The following opinion was filed April 11, 1893:
The defendant moves for a rehearing of this cause, not for any alleged error in the decision and judgment heretofore made and entered therein, but upon an affidavit of facts outside the record, which it is claimed constitutes a valid defense to the action. Such alleged facts are not set up in the answer, were not litigated on the trial, nor mentioned in the argument of the case in this court. Affidavits outside the record cannot be considered on a motion for rehearing, and the motion must necessarily be denied.
Such modification of the judgment is of little practical importance in this case, for the action is ejectment and the defendant is entitled to a new trial under the statute, on complying with the prescribed terms. On such new trial it could move for, and it would be competent for the court to grant, leave to interpose additional defenses; but we think the defendant should be allowed to make such application to the circuit court without being compelled first to com
By the Court.— The motion for a rehearing is denied, with $25 costs. The judgment will be amended as above indicated.