Howbert v. Heyle

• Decision Date: 09 July 1891
• Citation: 47 Kan. 58,27 P. 116
• Parties: LULU M. HOWBERT et al. v. VALENTINE HEYLE
• Court: Kansas Supreme Court

27 P. 116

47 Kan. 58

LULU M. HOWBERT et al. v. VALENTINE HEYLE

Supreme Court of Kansas

July 9, 1891

Error from Shawnee District Court.

EJECTMENT. The material facts are stated in the opinion. Judgment for defendant, Heyle, on March 22, 1888. The plaintiffs, Howbert and another, bring the case to this court.

Judgment reversed.

E. E Chesney, G. W. Carey, and Hollister & Hollister, for plaintiffs in error.

James J. Hitt, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action in the nature of ejectment, brought in the district court of Shawnee county by Lulu M. Howbert and George Howbert against Valentine Heyle, to recover the undivided two-twelfths of a certain quarter-section of land hereafter described. A trial was had before the court without a jury, and the court made certain findings of fact and conclusions of law, and upon such findings and conclusions rendered judgment in favor of the defendant and against the plaintiffs; and the plaintiffs, as plaintiffs in error, bring the case to this court for review.

It appears that in 1869 George W. Howbert owned the undivided two-thirds of the aforesaid quarter-section of land, to wit the southeast quarter of section 32, township 12, range 17, in Shawnee county; and that while owning the same, and in 1869, he died intestate, leaving as his heirs, his wife, Martha, and four children, Dora, Augusta, Lulu M., and George. After his death, and on November 6, 1869, Joseph A. Deitrich was appointed and he gave bond and duly qualified as the guardian of Dora, Lulu M., and George; they at the time being minors. Afterward, and on June 6, 1870, the guardian sold the interest of the aforesaid minors in the aforesaid quarter-section of land to Valentine Heyle for the sum of $ 357, which sale was immediately confirmed, and a guardian's deed executed and recorded, and Heyle took the immediate possession of the land, all on June 6, 1870, and he has been in the actual and continuous possession of the land ever since, claiming exclusive ownership therein adverse to the plaintiffs and to all others. This action was commenced on October 16, 1886. The defendant in his answer denied generally all the allegations of the plaintiffs' petition except as to his (the defendant's) possession, and also pleaded the 15-years' statute of limitations. (Civil Code, § 16, subdiv. 4.)

The first question arising in the case upon the pleadings and the evidence is, whether or not the plaintiffs' action is not barred by the aforesaid 15-years' statute of limitations. One of the plaintiffs, Lulu M. Howbert, was born on June 16, 1860; hence she arrived at 18 years of age and attained her majority on June 16, 1884, (Act relating to Minors, § 1,) and the two years given her by § 17 of the civil code after her disability of minority was removed within which to commence her action expired on June 16, 1886, just four months prior to the commencement of this action; hence her present action is barred by the aforesaid 15-years' statute of limitations. Lulu's action would also be barred by the five-years' statute of limitations relating to real property claimed under a guardian's sale and deed, (Civil Code, § 16, subdiv. 2,) if such sale and deed were only voidable and not absolutely void, for she had more than five years after her supposed cause of action accrued, and more than two years in addition thereto after she attained her majority, before she commenced this action. This five-year statute of limitations, however, was not pleaded, but as this is an action in the nature of ejectment, it may be considered in determining the rights of the parties under the general pleadings without any special plea of the statute, if the sale and deed were only voidable and not utterly void. The aforesaid statutes of limitations, however, do not apply to the other plaintiff, George Howbert, for he did not attain his majority until within less than one year before the commencement of this action, and he then attained the same by a proceeding in the district court. Nor can either of the plaintiffs recover in this action if the aforesaid sale and deed were only voidable and not void; for this is purely a collateral attack upon them and not a direct attack. As to Lulu Howbert, the judgment of the court below must of course be affirmed, for the reason that her cause of action was barred under the 15-years' statute of limitations before this action was commenced.

As to George Howbert, however, it will be necessary to consider the case further, in order to ascertain whether the guardian's sale and deed were and are utterly null and void or not. If they are only voidable, they cannot be attacked in this proceeding, for the reason that such attack is only collateral, and is not direct. Counsel for the plaintiffs claim that such sale and deed are utterly null and void. Indeed, they claim that all the proceedings in the probate court with reference to the guardianship and everything done under the guardianship are utterly null and void. Going into particulars, it is claimed that there is no record in the probate court showing the appointment of the guardian. The court below, however, found as a fact that the guardian was duly appointed on November 6, 1869, and that he gave bond and duly qualified. This was the bond required by § 3 of the act relating to guardians and wards. It is also shown by the evidence and found by the trial court, that letters of guardianship were duly issued by the probate judge to the guardian, Joseph A. Deitrich, and that such letters were duly recorded by the probate judge in the records of his office, and Deitrich afterward, with the approval of the probate judge, acted as such guardian. This is certainly sufficient. The case of Higginbotham v. Thomas, 9 Kan. 328, has but little if any application to this case, and is not controlling.

It is further claimed by the plaintiff in error, that the petition of the guardian to sell the land of the plaintiffs is insufficient: First, because it does not state facts, but only conclusions and inferences; and, second, because it does not give a sufficient description of the land to be sold. We think the petition is amply sufficient when attacked collaterally, as it is now attacked. It stated that the minors had no money or personal property, and that it was to their interest and necessary for their support and education that the land should be sold; and it described the land as the one-twelfth interest of each of the minors "in the following-described real estate, to wit: The southeast quarter of section 32, range 17, township 12." The objection to this description is, that it does not state in what county or state the land is situated, nor whether in range east or west, or township north or south. The land, however, is situated in Shawnee county, and the aforesaid description of it is perfect except as to the omissions complained of; all the parties interested in the land resided in that county; all the proceedings were had in that county; and in all the other proceedings the description of the land was complete; and no person could have been misled as to where the land is situated. We think the description was and is sufficient when attacked collaterally, as in this case. The case of Cohen v. Trowbridge, 6 Kan. 385, has but little if any application to this case, and is not controlling.

It is also claimed that no sufficient service of the petition to sell the land and the notice of the hearing thereof was ever made upon the minors: First, because no notice at all was ever served upon them; second, because the...