Brown v. Pinkerton

• Decision Date: 09 June 1905
• Citation: 95 Minn. 153,103 N.W. 897
• Parties: BROWN v. PINKERTON.
• Court: Minnesota Supreme Court

95 Minn. 153

103 N.W. 897

BROWN

v.PINKERTON.

Supreme Court of Minnesota.

June 9, 1905.

Appeal from District Court, Lac qui Parle County; Gorham Powers, Judge.

Action by E. O. Brown against J. A. Pinkerton. Findings for plaintiff. Motion for new trial denied, and defendant appeals. Reversed.

Syllabus by the Court

1. Section 204, c. 46, Probate Code 1889 (section 4611, Gen. St. 1894), limiting the time to five years for the heir or person claiming under him to bring suit to set aside a guardian's sale, held to be retrospective, and to apply to all such sales before that date.

2. The statute of limitations referred to is one of repose, and not of evidence, and protects the purchaser or person claiming under him at the guardian's sale where five years has elapsed since the guardianship terminated and the sale was made.

3. To give effective force to the operative word ‘sale,’ in the statute, it is sufficient if there was a license of the probate court, a sale evidenced by confirmation of the probate forum, and a conveyance resting thereon, although irregular in form.

4. Where it appears that such conveyance was made by the guardian, and is in fact, though informal in its recitals, an attempt to give effect to the probate proceedings, it is a sufficient deed, as such, to put the limitation statute into operation. H. L. Hayden and C. A. Fosnes (C. M. Greene, of counsel), for appellant.

Sorkness & Palmer and W. Brown, for respondent.

LOVELY, J.

This is the statutory action to determine adverse claims to a quarter section of land in Lac qui Parle county. The cause was tried to the court, who made findings of fact, and held that plaintiff was the owner of a designated interest in the property; that defendant acquired no interest or right to the same under a guardian's deed which was the real subject of the controversy in the suit. There was a motion for a new trial, which was denied, and from this order defendant appeals.

The following facts are of record, not open to dispute, and in accord with the findings of the trial court: In 1886 Andrew Gilberg died intestate, owning the tract which is the subject of the litigation. He left, him surviving, a widow and one son, John F. Gilberg. Manford Horn was appointed administrator of the estate, and also guardian of the son, who was then 14 years of age. On the 2d of March, 1889, the guardian filed a petition in the probate court of Lac qui Parle county, asking leave to sell his ward's interest in the real property referred to, upon the stated ground that it would benefit the ward, in that he would have the interest, and to provide for an outstanding mortgage thereon then due. This application was considered by the probate court, who, on the 14th day of May following, by order authorized the guardian to sell at private sale the quarter section referred to, provided, before making the sale, the land should be appraised by three persons, who were appointed to estimate the value of the same, who should first take and subscribe an oath to honestly appraise the property at a fair cash valuation, and that it should not be sold for less than its estimated value, or until after the terms of the sale should have been published four weeks in a designated newspaper; also that such sale should not be made until a bond had been executed by the guardian to the judge of probate in the sum of $1,500, conditioned that such guardian account for the proceeds of the sale. On the 14th of June following, the guardian reported to the court that he had caused the estate in question to be appraised, that the required bond had been given, that he had taken the oath provided for; that the proper notice was published, and that he offered and sold the land in question upon the terms provided in the notice, as directed by the court, viz., for $1,600, to be paid for as follows: 400 bushels No. 1 wheat in the fall of 1889, and 600 bushels each succeeding year until fully paid, at market price, with interest at 8 per cent. per annum. Also that the guardian was not interested in the sale. Thereupon the same day an entry was made by the judge of probate finding that all the requirements in the order of sale had been complied with, and that the property had been sold to one Emil Jacobson for its appraised value. The sale was thereupon in terms confirmed, and the guardian, in form, duly authorized to make a deed therefor to the purchaser. In December, 1889, John F. Gilberg removed to Sioux Falls, S. D., where he has ever since resided. He became 21 years of age March 12, 1894, when the guardianship necessarily terminated. After the first payment by sale of wheat was made by Jacobson, there was a new oral agreement, by the terms of which Horn, the guardian, was to convey the lands, and Jacobson was to execute a mortgage thereon for a loan, and thereby raise money to pay for the same. Thereafter, on November 26, 1890, the guardian executed a warranty deed purporting to convey to Daniel Emil Jacobson (the same person who purchased the land), for $2,400, the property in question. This deed was in the usual form, contained full covenants of warranty, but made no reference to the probate proceedings as source of title or right to sell or convey the premises, except that in the body of the deed Manford Horn was designated as ‘guardian of John F. Gilberg,’ and the conveyance was signed, ‘Manford Horn, Guardian.’ This deed was delivered about the time it was executed, and was recorded December 16, 1890. In the course of time through mesne conveyances the quarter section attempted to be deeded to Emil Jacobson, whose real name was Daniel Emil Jacobson, through subsequent transfers, passed to the defendant in this case, who purchased the same for full value, with no other notice of defects in the title than such as appeared of record in the probate court and the office of the register of deeds of Lac qui Parle county. There was a settlement between the ward and his guardian on the 21st day of January, 1899, which was approved by the probate court. In such settlement the ward received from the guardian a certain specified sum in full satisfaction of all claims and money due him from the guardian, for which he executed his release, whereupon Horn was discharged by the probate court from all liabilities of the guardianship trust. It would seem as if the ward took no further interest in the property until after he transferred his title, on July 27, 1903, to the plaintiff in this suit, for the inconsiderable sum of $25.

It appears from an examination of the records in this suit that, while the guardian was licensed to sell the property of the ward and the court confirmed the sale, and a deed, though informal, was made thereof, yet there were serious irregularities. There was in fact no notice thereof published; no bond was given till a year after the sale; the land was not offered at the time it was directed to be sold; the sale to Jacobson was upon an oral agreement, rather than based upon a published notice; and the deed finally executed, though resting upon an order to sell by the court, was informal, and did not recite the probate proceedings upon which it was predicated. It must therefore be conceded that these defects in the procedure to dispose of the property by the guardian were of such substantial character that the sale would have been avoided if the defects had been questioned in time. Certain conditions restricting collateral inquiry into the sale of real estate by guardians have existed in our statutes ever since, and probably before, the revision...