Beezley v. Phillips

• Decision Date: 28 July 1902
• Docket Number: 1,614.
• Citation: 117 F. 105
• Parties: BEEZLEY v. PHILLIPS.
• Court: U.S. Court of Appeals — Eighth Circuit

117 F. 105

BEEZLEY v. PHILLIPS.

No. 1,614.

United States Court of Appeals, Eighth Circuit.

July 28, 1902

Syllabus by the Court.

A guardian's sale of real estate is void in a case in which the court which issued the license to the guardian to sell the property had no jurisdiction of the subject-matter.

The statutes of Nebraska provide two different modes of procedure for the sale of the real estate of a ward by a guardian,-- one to authorize its sale to pay debts, and the other to authorize its sale to support the ward, or to invest the proceeds in personal property. Upon a petition sufficient to warrant a guardian's sale to pay debts, a sale was made pursuant to the course of procedure prescribed for that purpose, which was conceded to be invalid because the court failed to cause the issue and service of the statutory notice of the hearing upon the petition which was requisite to give it jurisdiction. In the procedure to sell for maintenance and investment no notice to the ward was essential, and an attempt was made to sustain the guardian's sale on the ground that it was made for the maintenance of the ward and the investment of the proceeds. Held: (a) A petition which contains only the essential allegations to warrant a guardian's sale to pay the debts of the ward does not give the district court jurisdiction, under the statutes of Nebraska, to order a sale for the maintenance of the ward or for the investment of the proceeds of the sale. (b) The petition did not contain the requisite allegations to invoke the jurisdiction of the court to license a sale for maintenance or investment; the court did not attempt to license such a sale, did not follow the course of procedure prescribed by the statute to authorize such a sale; and the guardisn's sale in question was void, because the license to the guardian was not issued by a district court of competent jurisdiction, within the meaning of section 64 c.23,Comp.ST.Neb.1901.

C. C Wright (John F. Stout, on the brief), for appellant.

R. A Batty (Harry S. Dungan, on the brief), for appellee.

Before SANBORN and THAYER, Circuit Judges, and LOCHREN, District Judge.

SANBORN Circuit Judge.

This is a bill in equity, exhibited by Paul Beezley, a complainant in possession, to quite the title to 160 acres of land in the state of Nebraska. In the year 1888 the defendant, Ada E Phillips, was a minor, and was the owner of this real estate. The title of the complainant is founded upon a sale made by the guardian of the defendant to George E. Gilbert on March 24, 1888, pursuant to a license issued by the district court of Franklin county in the state of Nebraska on December 16 1887. The question at issue is whether or not that court ever acquired jurisdiction to authorize this sale. The statutes of Nebraska empowered the district court to license a guardian to sell the land of his ward for two purposes: (1) To maintain or educate the ward, or to invest the proceeds of the sale in productive stock or interest-bearing securities (Comp. St. Neb. 190,, c. 23, Secs. 42, 43); and (2) to pay the debts of the ward and the charges of managing her estate (Id. c. 23, Sec. 105). It provided two different and independent courses of proceeding for sales for these two purposes. Chapter 23, Secs. 42-66, and Secs. 105-122 and 67-82. Counsel for the complainant concede that, if the sale in question was for the purpose of paying the debts of the ward, the district court acquired no jurisdiction to grant the license, because the statutory notice of the hearing upon the petition was not given. But they insist that, although the petition was ample to warrant the issue of a license to pay debts, it was also sufficient to invoke the jurisdiction of the court to authorize a sale for the maintenance of the ward and the investment of the surplus proceeds, and that, if this position is well taken, the sale was valid, although no notice was given to the ward, for the reason that the proceeding by a guardian to sell the real estate of his ward for her maintenance or for investment has been held by the supreme court of Nebraska to be a proceeding by the minor herself, the validity of which she is estopped from challenging on the ground that she received no notice of it, for the reason that she instituted and promoted it herself. Hubermann v. Evans, 46 Neb. 784, 793, 65 N.W. 1045; Myers v. McGavock, 39 Neb. 843, 861, 58 N.W. 522, 42 Am.St.Rep. 627. Conceding, without deciding, that the fact that the petition for the license to sell the real estate contains sufficient allegations to warrant a sale of it to pay debts is immaterial, and that those averments are mere surplusage, provided it also duly invoked the jurisdiction of the district court, and that court exercised its jurisdiction to authorize the sale of the land for maintenance or investment, let us consider the question whether or not the petition is sufficient to invoke the jurisdiction of the district court to authorize a sale for the support of the ward and the investment of the proceeds. The statutory requisites of a petition to sell land of a ward to pay debts are statements by the guardian of the amount of personal and real estate that has come to his hands the amount remaining undisposed of,...