Davidson v. Lindsay

• Decision Date: 31 May 1861
• Citation: 16 Ind. 186
• Parties: Davidson v. Lindsay
• Court: Indiana Supreme Court

16 Ind. 186

Davidson v. Lindsay

Supreme Court of Indiana

May 31, 1861

APPEAL from the Fulton Common Pleas.

The judgment is reversed, with costs.

H. P Biddle and R. G. Shryock, for the appellant.

D. D Pratt, for the appellee.

OPINION

Davison J.

This was a proceeding in the Fulton Common Pleas, to review a judgment of the same Court, rendered at the January term, 1854. Geo. B. Lindsay, a minor, by his next friend, &c., was the plaintiff below and Stephen Davidson, the defendant. The complaint alleges, substantially, these facts: At the October term, 1853, Lot N. Bogarth, the then guardian of the minor, filed a petition in said Court for the sale of certain real estate belonging to his ward, representing therein, that the minor's personal property had been exhausted in the payment of taxes, schooling, &c. That his real estate, as described in the petition, is wild and unimproved, and produced nothing available for the sustenance and education of the minor; and that he, the guardian, desired to invest the proceeds of such real estate in railroad stock, believing that the avails of an investment of that kind could be realized, when most needed for the education and maintenance of the minor. The relief prayed, was that an order of sale be granted, for the purposes indicated in the petition; but no order to sell at private sale was prayed for; nor was any reason suggested why such private sale should be allowed. On October 11, 1853, the real estate in question was duly appraised at $ 400, and on the same day the guardian executed a bond with surety, conditioned as in such cases required by law. And thereupon the Court made an order directing the guardian to sell the real estate described at private sale, requiring one half the purchase money to be paid in hand, and the residue twelve months from the day of sale, and that the purchaser execute a note with approved security, as the statute requires. At the March term, 1854, the guardian reported that he had sold the said real estate to Stephen Davidson, the present defendant, for $ 800, in the capital stock of the Cincinnati, Peru, Laporte and Chicago Railroad Company; which sale was approved by the Court, and the guardian directed to make a deed to the purchaser. And such deed was afterward, on October 6, 1854, duly made and reported to the Court. But no notice of the sale was ever given by the guardian.

It is averred that the defendant, pursuant to the sale, took possession of the premises, and still continues to hold them unlawfully keeping the plaintiff out of possession; and that the same are worth $ 600, when, in point of fact, the railroad stock received in payment by the guardian, though, on its face it purports to be worth $ 800, is really of no value whatever. The following are the errors assigned on this complaint for a review: 1. The Court erred in ordering the land to be sold at private sale, no reason for such sale appearing in the record. 2. No provision is made for reasonable notice of such sale. 3. The Court erred in approving the sale, because no notice of sale was ever given by the...