26 Minn. 487 | Minn. | 1880
The plaintiffs Harry K. and Harriet M. were minors, owners of certain- real estate in the city of Saint Paul, and Dana White was their general guardian,
The said loan was made and mortgage taken in good faith, and the purchase at the foreclosure by defendant was made in good faith; neither said trust company, nor Edwards, nor this defendant, having, prior to the commencement of this action, any actual notice that Dana White had any interest in the purchase by Hoffman at the guardian’s sale, nor of any of the facts, except such as appeared of record. There was nothing in the record to charge either the company, or Edwards, or defendant with notice of the illegality in the sale. The facts that the purchaser at the sale conveyed some months afterwards to the guardian making it, and that the deed to the purchaser, and that from him to the guardian, were recorded the same day, were not sufficient to charge a purchaser from the guardian with notice of any
The statute regulating such sales, Gen. St. 1S78, c. 57( § 41, provides that “no executor, administrator or guardian making the sale shall directly or indirectly purchase, or be interested in the purchase of, any part of the real estate so .sold; and all sales made contrary to the provisions of this section shall be void.”
The plaintiffs contend that under this statute the sale is an absolute nullity — void as to everybody — so that no rights •could be lost, or acquired, or in any way affected by it. If the plaintiffs be right in this, of course it is no protection to the defendant that he is a bona-fide purchaser. The defendant contends that the statute merely affirms the rule which, prior ~to its passage, had become established by decisions of the courts, that the sale is void only as against those having an .interest in the estate sold, and only when they, while it remains in the hands of some one chargeable with notice of the facts, seek to avoid it; and that the statute uses the word “void” in the sense in which it was,'prior to its passage, very frequently used by the courts — that is, voidable at the election of the cestuis que trust. If the defendant be right in this, the plaintiffs cannot avoid the sale as to him.
We find few decisions upon similar statutes. The statute in New York does not differ from ours. In Forbes v. Halsey, 26 N. Y. 53, the court construed the statute to make such ■sales absolutely void, so that “the title remains in the original owners, as though the sale had never been made.” The same thing was held in Terwilliger v. Brown, 44 N. Y. 237. In neither case is any reason given for holding such to be the meaning of the statute, other than that such is its language.
The statute of California provides: “No executor or administrator shall directly or indirectly purchase any property of
In Ohio, a statute regulating sales on execution provided that “no sheriff or other officer making the sale of property, either personal or real, nor any appraiser of such property,, shall either directly or indirectly purchase the same; and every purchase so made shall be considered fraudulent and void.” The character of such a sale was determined in Terrell v. Auchauer, 14 Ohio St. 80. Although the opinion attaches considerable — as we think, undue — importance to the-word “considered”■ in the statute, it is, aside from the meaning given to that word, to the effect that the statute is one of those instances in which the legislature uses the word “void” in the sense of “voidable.”
The statute of Michigan as,to executors’, administrators’ or guardians’ sales is the same as ours. As to whether a sale contrary to the statute was utterly void, so that a bona-fide purchaser could make no title through it, or only voidable, and so passing a title to a bona-fide purchaser, the supreme-court, in Hoffman v. Harrington, 28 Mich. 90, was equally divided. It is an instructive case, as the opinions say about-all that can be said on each side of the question.
• Instances where courts have held the word “void” in statutes as having the effect of voidable, occur under statutes against usury both in England and the older states of the-Union. Cuthbert v. Hale, 8 Term Rep. 490; Hussey v. Jacob, 1 Ld. Raym. 87; Jackson v. Henry, 10 John. 185; Dix v. Van Wyck 2 Hill, 522; Green v. Kemp, 13 Mass. 515; Reading v. Weston, 7 Conn. 409.
In Allis v. Billings, 6 Met. 415, the court say: “The term ‘void,’ as applicable to conveyances and other agreements,.
It is difficult to lay down a rule when courts may construe the term “void,’-’ occurring in a statute, to mean voidable. We think, generally, it is to be understood that the legislature employs the term in its strict and precise meaning, and that when it says a thing shall be void, it means that the thing shall be null, and of no effect whatever. But when, in speaking of certain transactions, courts and law-writers have frequently used the word “void,” not in its strict and precise sense, but as meaning voidable, it may be a question, did .the legislature, in legislating concerning such transactions, and declaring they shall be void, use the word in its strict sense, or in the-less accurate sense? If there be nothing in the other language of the statute to indicate the sense in which the word was used, the general purpose of the statute, the prior rule of law on the subject, and the consequences of either construction, may be considered.
The manifest purpose of this section is to protect the interests of persons under guardianship, and of those interested in the estates of deceased persons, against possible frauds in sales of real estate, on the part of guardians, executors or administrators. Prior to the statute, the rule, for the same purpose of protection, was that such a sale, the purchase being made in the name of a third person, but in the interest in any way of the trustee, was voidable at the election of the persons interested as cestuis que trust in the real estate sold, if they considered that their interest required them to avoid it, but capable of ratification by them if they thought it to their advantage that it should stand. A condition of this right of election was that it should be timely exercised. Treating the word “void” in the statute as used in its strictest
Such a change in the rule, would inevitably prejudice the interests of those interested, in a still more important particular. Sales by guardians, executors or administrators are in many cases absolutely necessary. It is of great importance to those concerned that at such sales the land sold should bring a fair price. But if titles held under such sales are liable to be defeated by secret frauds, which the vigilance of a purchaser cannot guard against, they can hardly be regarded as salable titles. No prudent man could pay a fair price for a title liable to such imputation. Make it a rule that sales perfectly fair on tlieir face, which, so far as appears, have been conducted according to law, and which have been confirmed by the court ordering them, may be at any time and by any body shown to be null, and the titles under them .entirely defeated, by proof of a secret understanding between a trustee and a purchaser, and such sales, as a means of obtaining the value of the land sold, will be impracticable.
The uncertainty which such a rule would introduce into titles would be contrary to the general policy of the law ■on the subject of titles, to real estate. That policy is to give stability to titles, and to enable purchasers using proper caution to be secure in the titles they take. This is the purpose
This view of the section is sustained by the provisions of subsequent sections of the chapter. Section 50 limits the time within which a person claiming the estate sold by an executor or administrator, or a guardian, must bring an action to-recover the real estate sold. Section 51 provides that in case of an action in which an heir or person claiming under the deceased, or a ward or person claiming under him, contests the validity of the sale, “it shall not be avoided on account of any irregularity in the proceedings,” if certain things appear, which are: that there was license to sell; that a bond was given when required; that .the prescribed oath was taken; that proper notice of sale was given; • that the sale was at public auction, and has been confirmed by the court; and that the premises are held by one loho purchased in good faith. By section 53, if the validity of the sale
Judgment affirmed.