Ellsworth v. Hall
| Decision Date | 07 June 1882 |
| Citation | 12 N.W. 512,48 Mich. 407 |
| Court | Michigan Supreme Court |
| Parties | ELLSWORTH v. HALL. |
A guardian's petition to the probate court for license to sell the real estate of his ward is not fatally defective for not being sworn to; and as it is not required by statute to be signed it is sufficient if it describes the guardian and he presents it in person.
Expressions in a judicial opinion have no controlling force where they do not purport to give the views of the court or the settled conviction of the writer, and especially where the subject to which they relate is not material to the decision and is not decided.
Probate courts are courts of record and may properly enter upon their records all petitions for license to sell land. Comp.Laws, � 5193.
A guardian's sale is not invalidated by the fact that the guardian has not signed the report of sale: the defect may be supplied by reasonable amendment under the order of the probate court. Comp.Laws, � 4622.
Error to Isabella.
Stanford & Van Kleeck, for plaintiff and appellant.
Fancher & Dodds, for defendant.
Ellsworth sued in ejectment and on the conclusion of the evidence the circuit judge ordered a verdict in favor of Hall. The latter relied on a sale by plaintiff's guardian made in virtue of a license granted by the probate court under chapter 78 of the Revised Statutes of 1846, as amended in 1849, Comp.Laws 1434, and the ruling is questioned on the claim that the court of probate obtained no jurisdiction. It is not pretended that the proceedings were before the wrong court. But the real objection urged is that the mode of application was too imperfect to set the authority of the court in motion. It appears from the plaintiff's own proof that the guardian in person actually presented a petition for license, that the probate judge received it and entertained and acted upon the application as regular and sufficient. The objection brought against it is that it was neither signed nor sworn to, and without these it is argued the court had no power to consider the proceeding at all.
It was decided in this court more than 20 years ago that an administrator's neglect to swear to his application for license to sell real estate was not a fatal defect; Coon v. Fry, 6 Mich. 506; and the same principle applies here, and since the statute does not specify that the application must be signed it would be going far to hold the petition void for the want of signing. In this case as we have seen the application was presented by the guardian in proper person, and it appears from the petition that he is described in it. We think there was enough to occupy the jurisdiction and launch the proceedings. As certain expressions in Ryder v. Flanders are supposed to be at variance with our construction here, (30 Mich. 342,) it may be proper to say that whatever inference might be drawn from those observations it is plain they were not put forth as the views of the court or even as expressing the settled conviction of the author of the opinion, and moreover the subject to which they related was not material to the decision and was not decided. Some effort is made to impugn the action of the court on other grounds and it may be well perhaps to notice the points alluded to.
When the defendant was proceeding to prove his title he offered the petition already noticed, and the plaintiff then objected to it and the court sustained the objection. He then offered an entry from the probate records purporting to be a true record of the actual application in the case for license and representing the petition as signed and sworn to. The plaintiff then objected that it was not such a record as the judge of probate...
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