Davis v. Hudson
| Decision Date | 31 December 1881 |
| Citation | 11 N.W. 136,29 Minn. 27 |
| Parties | Edson Leroy Davis v. Luther B. Hudson and Wife |
| Court | Minnesota Supreme Court |
Ejectment for an undivided one-ninth of a quarter-section of land in Goodhue county, claimed by plaintiff as one of the heirs-at-law of Benjamin Hodgman, who died seized of the entire quarter-section, in 1863. The defendant in his answer alleged title under a sale made in 1867 by the guardian of plaintiff, (who was then a non-resident minor, and who became of age in 1878,) and asked that his title be quieted, and plaintiff be adjudged to have no interest in the land.
At the trial in the district court for Goodhue county, before Crosby, J., (a jury being waived,) the defendant (under objection and exception) introduced in evidence the records of the probate court of that county, to show the appointment of the guardian, and the authority for and validity of the guardian's sale. The only evidence produced to show the appointment of the guardian was:
1. A record of the following order:
[Caption] "In the matter of the estate of Edson Davis, of St Lawrence county, New York:
2. A record of letters of guardianship, in the ordinary form, of the same date with the order, and addressed James H. Hodgman. The plaintiff, in rebuttal, offered evidence to show the non-receipt of any notice by him, and his entire ignorance of any application for the appointment of a guardian, or of the appointment made. This evidence was excluded. He also called a witness who testified that he was employed in the office of the probate court while Deakin was still judge of probate and that, in 1874, while so employed by Deakin, he found the above order and letters of guardianship in an envelope in the office of the court, being the only papers which he found relating to the appointment of a guardian of plaintiff, and that he then made the record of them now in evidence.
Upon the findings of the court, judgment was entered for the defendant, and the plaintiff appealed.
Gould & Snow, for appellant.
The courts of this state have no power to appoint general guardians for persons residing in other states. Galpin v Page, 18 Wall. 350. While probate courts are held to be courts of general jurisdiction over the subject of guardianship (State v. Wilcox, 24 Minn. 143; Dayton v. Mintzer, 22 Minn. 393,) it is nowhere held that they are superior courts, or courts of general jurisdiction, except in this limited sense. The fact that they are courts of record does not make them courts of general jurisdiction. Their records may therefore import absolute verity so far as they go, but no jurisdictional fact can be presumed in behalf of the proceedings unless there be a finding or recital of such fact. And where courts, even of general jurisdiction, are directed by statute to proceed in a special manner, their records must disclose that they have complied with the statute. Ullman v. Lion, 8 Minn. 338, (381;) Galpin v. Page, 18 Wall. 350.
The statute required notice of the application for appointment of the guardian to be given to all parties interested. This notice is jurisdictional. The record shows that the order appointing the guardian was made upon the reading and filing of the petition only. If the order did not recite on what it was based, it might be urged (Turrell v. Warren, 25 Minn. 9,) that it was founded on such proceedings as authorized the action of the court. But as the record sets forth that the order was made on the petition alone, it cannot be contradicted by presuming that the order was made upon notice as well as on the petition. "When the record states the evidence or makes an averment with reference to a jurisdictional fact, it will be understood to speak the truth on that point; and it will not be presumed that there was other or different evidence respecting the fact, or that the fact was otherwise than as averred." Galpin v. Page, 18 Wall. 350, 366; Gillett v. Needham, 37 Mich. 143.
The appointment of the guardian being void, of course the subsequent action for sale was void. There being no guardian, there was no one to petition, and no one to whom license could be granted. Chase v. Ross, 36 Wis. 267; McCubb v. Bray, Id. 333; Sigourney v. Sibley, 21 Pick. 101; Sitzman v. Pacquette, 13 Wis. 291; Frederick v. Pacquette, 19 Wis. 541; Freeman on Void Judicial Sales, § 10.
OPINION
1. "The judge of probate in each county, when it appears to him necessary or convenient, may appoint guardians to minors and others, being inhabitants or residents in the same county, and also to such as reside out of the state and have any estate within the same." Gen St. (1866) c. 59, § 1. (Gen. St. 1878, c. 59, § 1.) "When a person liable to be put under guardianship, according to the provisions of this chapter, resides without this state and has any estate therein, any friend of such person, or any one interested in his estate in expectancy or otherwise, may apply to the judge of probate of any county in which there is any estate of such absent person, and, after such notice to all persons interested as the judge shall order, and a full hearing and examination, a guardian may be appointed for such absent person." Id. § 13. (Gen. St. 1878, c. 59, § 21.) "Such guardian shall have the same powers and duties with respect to any estate of the ward found within this state, and also with respect to the person of the ward if he comes to reside therein, as are prescribed with respect to other guardians appointed under this chapter." Id. § 14. (Gen. St. 1878, c. 59, § 22.)
Beyond question these provisions of statute assume to authorize a probate court of this state to appoint a guardian for a non-resident minor, as respects any estate which the minor may have in the county where such probate court is established. With a valid authority to this extent our probate courts may properly be invested. Statutes conferring like authority have been in force here ever since the organization of the territory of Minnesota, and similar laws are found in Massachusetts, Ohio, Vermont, Michigan, Wisconsin, and other states. Jurisdiction to appoint a guardian exists as well when the infant has property in the state where the jurisdiction is sought to be exercised, as when he is domiciled therein. It rests upon a like basis in both cases, viz., the right and duty of a government to take care of those who are unable to take care of themselves, as respects either person or property. McLosky v. Reid, 4 Bradf. (N.Y.) 334; Wharton on Conflict of Laws, §§ 259, 261, 265, 266, 268; and see Clarke v. Cordis, 4 Allen 466. With respect to real estate, it is to be added that the control and disposition of it must necessarily be subject to the lex rei sitoe.
2. If a general guardian be appointed for a non-resident minor, and it be admitted that the appointment is, on account of its generality, too broad, there is no reason why it should not be held good to the extent to which it would have been lawful and competent to make it, to wit, to the extent of the minor's estate within the jurisdiction in which the appointment is made. In the case at bar the minor was a resident of the state of New York, and owner of land in our county of Goodhue. It was therefore competent for the probate court of Goodhue county, and within its general jurisdiction, to appoint a guardian for him as respected such land, (being the same which is in controversy in this action,) and the appointment of a general guardian would be good to that extent.
3. This is an action in which the defendant, to maintain his title to certain real estate and his right to its possession, relies upon a sale claimed to have been made by a guardian appointed for a non-resident minor, under the statutory provisions before quoted. The validity of the sale is contested by the minor -- the plaintiff -- now of age.
One objection taken to the sale is that it does not appear that notice of the hearing of the application for the appointment of a guardian was given, as by law required. Though the probate courts of this state are invested with a general authority in matters of guardianship, the manner and conditions of its exercise in a particular case are regulated and controlled by statute. Jurisdiction in a particular case, as, for instance, to appoint a guardian for a particular minor, must therefore regularly be acquired in the manner which the statute points out. As respects the appointment of a guardian for a non-resident minor, section 13, before cited, provides that "after such notice to all persons interested as the judge shall order, and a full hearing and examination, a guardian may be appointed for such absent" (i. e., non-resident) minor. The notice is jurisdictional, for it is only after notice that the judge is authorized to make the appointment. The manner of notice is committed to the discretion of the judge, but some notice is indispensable. The fact that a hearing is provided for is of weight, if not decisive, in support of this conclusion. Gillett v. Needham, 37 Mich. 143; Mohr v. Porter, 51 Wis. 487, 8 N.W. 364.
4. By Gen....
To continue reading
Request your trial
-
Faloon v. Flannery
...any event appellant is not in a position to raise the question. 2 Black, Judg. § 643; Kurtz v. St. Paul & D. Ry. Co., 61 Minn. 18; Davis v. Hudson, 29 Minn. 27; Curran v. Kuby, 37 Minn. 330; Yeatman v. Yeatman, Neb. 422. OPINION CANTY, J. This action was brought to partition the land in que......