Wilkinson v. Filby, 24 Wis. 441

Wilkinson v. Filby

24 Wis. 441 | Wis. | 1869

Dixon, C. J.

The case of Blackman v. Baumann, 22 Wis. 611, is fully decisive of this. That was a-stronger case for the defendant there than this for the defendant here. It appeared there that the guardian took the oath prescribed by the statute, before making the sale, though not before fixing on the time and place of sale. In this case it does not appear that any oath at all was taken by the guardian; and the consequence is, that no title whatever passed by virtue of his deed.

The learned counsel for the defendant insist very strongly upon the doctrine of equitable estoppel in this case — that the plaintiffs, now of full age, who were the infant children and wards at the time the land was sold, and for whose benefit, it is claimed, the same was sold by their guardian, and the proceeds applied for their nurture and education, should be estopped from questioning the legality of the proceedings and the validity of the defendant’s title under them. It ought, perhaps, to be a sufficient answer to this position of counsel, that in the multitude of cases of this kind which have arisen and are constantly arising in the courts, we find no decision or intimation of opinion anywhere that such is the law. If it were possible to found an estoppel upon facts of this nature, it must certainly have been attempted a great many times ; and yet we find no record of it in the books.

It would seem to be wholly inconsistent with established principles, that infants, or persons not sui juris, themselves incapable of performing the act, or of assenting to its performance by others, should yet be bound by it when unlatofully done by another. The act of the guardian derives its whole force from the law which authorizes it; and, if it be unauthorized by law, it is void. The infant, as well by his incapacity to assent to the sale as by his total want of power to direct or control the disposition which shall be made of the proceeds, is and must be regarded as wholly irresponsible and blameless *445Having no will of Ms own, and being subjected entirely to that of Ms guardian, it would be strange indeed were lie to be estopped by the unlawful acts of the guardian. Counsel pointed us to no authority to sustain their position ; and we are certain that none can be found. On the other hand, after considerable research, we have found two' cases in which the point seems to have been raised ; and in both it was held that there was no estoppel. See De Mall v. Lockwood, 3 Blatchford, 56; and Requa v. Holmes, 26 N. Y. 338. The remedy of the purchaser must be upon the covenants in the guardian’s deed.

It is objected, that there was no such ouster as would enable the plaintiffs to maintain the action. The defendant was in possession of the land, claiming title adversely to the plaintiffs, under the guardian’s deed. That was a sufficient ouster, or exclusion of the plaintiffs, to sustain the action.

By the Court. —The judgment of the circuit court is affirmed.

Note bt Dixon, C. J. Since the foregoing opinion was filed, I have met with the following decisions, in which it was held that minor heirs may, under some circumstances, be estopped from questioning the regularity or validity of sales made or assented to by their guardians, where the proceeds thereof have been applied to the use or benefit of such heirs. They are interesting cases upon the subject; and I deem it important that the attention of the profession should be called to them: Wilson v. Bigger, 7 W. & S. 111; McPherson v. Cunliffe, 11 S. & R. 426; Stroble v. Smith, 8 W. 280; Benedict v. Montgomery, 7 W. & S. 238; Lessee of Merritt v. Horne, 5 Ohio St. 307.