Huberman v. Evans

• Decision Date: 21 January 1896
• Citation: 46 Neb. 784,65 N.W. 1045
• Parties: HUBERMAN ET AL. v. EVANS ET AL.
• Court: Nebraska Supreme Court

46 Neb. 784

65 N.W. 1045

HUBERMAN ET AL.

v.EVANS ET AL.

Supreme Court of Nebraska.

Jan. 21, 1896.

Syllabus by the Court.

1. Defects and irregularities in the proceedings by a guardian for the sale of the real property of his ward will not affect the title of a good-faith purchaser, where so much as section 64, c. 23, Comp. St., makes essential to the validity of the sale, has been complied with.

2. By “a district court of competent jurisdiction,” in subdivision 1 of said section, is meant the district court of the county in which the guardian was appointed.

3. A petition by a guardian for a license to sell the ward's real estate should describe all the land that the ward owns, and especially that which is sought to be sold. But any description therein will be sufficient, when collaterally assailed, if it provides the means of identifying the property.

4. In proceedings to sell the real estate of a ward, the description of the land need not necessarily be more specific, definite, and certain than is required in a conveyance of real property. Hence a general description of the premises in such petition, as all the real estate of the ward situate in this state, or in any particular county or city therein, is not void for indefiniteness and uncertainty.

5. The proceedings of a guardian to obtain authority to sell the land of his ward will not be invalidated by reason of a manifest false statement in the description of the property in the application and license, when the remainder of the description, after rejecting that which is erroneous, is sufficiently certain to enable the land to be located.

Error to district court, Douglas county; Keysor, Judge.

Action by Anna C. Huberman and others against Mary B. Evans and others. There was a judgment for defendants, and plaintiffs bring error. Affirmed.Winfield S. Strawn, for plaintiffs in error.

B. G. Burbank and Wharton & Baird, for defendants in error.

NORVAL, J.

This is an action by plaintiffs in error to recover lot 4 in block U in Lowe's addition to the city of Omaha. Two other actions were brought in the court below by the plaintiffs against other defendants to recover lots 5 and 6 in the same block. By consent the three cases were tried together, and by stipulation of the respective parties it was agreed that the decision in one should control the others, since the facts in each case were the same. Upon a trial to the court, judgment was entered herein against the plaintiffs. There is no controversy as to the facts. The parties claim title to the real estate in controversy through August Huberman, deceased, as a common source. On the 15th day of December, 1878, August Huberman died in Douglas county, this state, intestate, seised in fee simple of lots 7 and 11 in block S, lots 4, 5, and 6 in block U, and lots 1, 2, 3, 4, 5, and 6 in block V, all in Lowe's addition to the city of Omaha. Huberman left surviving him three minor children (the plaintiffs herein) and a widow. The latter was subsequently duly appointed by the county court of said county guardian of said minors, and qualified as such. The premises last above described were all the real estate situate in Douglas county which plaintiffs owned at the time the proceedings hereinafter mentioned for license to sell the lands of the wards were instituted. On March 20, 1884, the guardian filed in the district court of Douglas county the following duly-verified petition for an order to sell the real estate of her wards: “In the District Court of Douglas County, State of Nebraska. In the Matter of Guardianship of Anna C. Huberman et al., Minors. Now comes Ellenor Huberman, guardian herein of Anna C. Huberman, Emma Huberman, and Henry Huberman, and shows to the court that said minors have no personal estate whatever, or of any kind; and your petitioner is the mother of said minors, and she is a widow, and without any means of support, except what she can earn by her own labor. Your petitioner further shows to the court that said minors are possessed of real estate situated in the county of Douglas, and state of Nebraska, and described as follows, to wit: Lot seven (7) in block S; lot eleven (11) in block S; lots (4) four, five (5), and six (6) in block W; and lots one (1), two (2), three (3), four (4), five (5), and six (6) in block V,--all in Lowe's addition to the city of Omaha. Your petitioner further states that the above is all the real estate belonging to said minors. She also states that there is a mortgage amounting, with interest, upon said real estate, to about the sum of $1,500, and that said real estate is now worth about the sum of $2,000. Your petitioner further alleges that said minors are in need of the proceeds of the sale of their said real estate for their support, maintenance, and schooling. Wherefore, your petitioner prays that she be licensed to sell all the above-described real estate, and that an order be made to her for that purpose by this honorable court, and for such other and further relief as in equity she is entitled to.” Notice of the presentation of the foregoing application was published for the period and in the manner provided by law, which notice contained no specific description of the property, but stated, in general terms, the object and prayer of the petition to be to secure a license to sell all the real estate of the minors situate in Douglas county, Neb. Pursuant to said notice the district court entered an order or decree authorizing a sale of all the real estate described in the petition. The guardian, after taking and subscribing the oath required by law, and filing the statutory bond, which was approved, gave due and legal notice that she would, in obedience to said license, on the 28th day of November, 1885, at 10 o'clock in the forenoon of said day, sell the real estate of her wards, which notice stated the time, place, and terms of sale, and described the real estate thus: “The following described real estate, being and situated in Douglas county, and state of Nebraska, to wit: lots 7 and 11 in block S; lots 4, 5, and 6 in block U; lots 1, 2, 3, 4, 5, and 6 in block V,--all in Lowe's addition to the city of Omaha.” On the date last aforesaid, and pursuant to the terms of said notice, the guardian sold at public sale all the real estate last above described, including the lot in controversy herein, to Dexter L. Thomas, who was the highest bidder thereof, and who purchased in good faith, and for a valuable consideration. Subsequently said sale was reported to, and confirmed by, the district court; and a deed was executed, acknowledged, and delivered by said guardian to said Thomas, covering the property so purchased by him, including said lot 4 in block U. The lots in block U were erroneously described as in block W in the petition of the guardian for license, and in the license to sell. There is not now, and never has been, any block in Lowe's addition to the city of Omaha known or designated as “Block W.” The defendants claim title to, and hold possession of, said lot 4 in block U, under and through a series of valid conveyances from said Dexter L. Thomas.

It is obvious that the plaintiffs are entitled to recover the premises in dispute unless their title or interest therein was divested by the guardian's deed already mentioned. Whether it had that effect is the pivotal point in the case. The legislature has, by section 42 et seq., c. 23, Comp. St. enumerated the purposes for which a guardian may sell the real estate of his ward, and prescribed the steps to be taken by the guardian in order to effect such sale; one of these being that the contemplated sale must be first licensed either by the district court of the county in which the guardian obtained his appointment, or by a judge of such court, and this though the premises are located in another county. Stack v. Royce, 34 Neb. 833, 52 N. W. 675. There is no room to doubt that a sale by a guardian without such order is of no force whatever. It is not a mere irregularity, but is absolutely void. Ludlow's Heirs v. Culbertson Park, 4 Ohio, 5;Newcomb's Lessee v. Smith, 5 Ohio, 448;Goforth's Lessee v. Longworth, 4 Ohio, 129; Bell's Appeal, 66 Pa. St. 498; Evans v. Snyder, 64 Mo. 516;Walbridge v. Day, 31 Ill. 379;Tippett v. Mize, 30 Tex. 361. In the case before us a license was issued by the court of the proper county, but it is argued by counsel for plaintiffs that it, and the application therefor, were so defective as to render the guardian's deed nugatory. The objections to the proceedings instituted by the guardian to obtain the license which resulted in the sale and conveyance of the property present the questions which have been discussed by counsel in the brief, and are to be decided by the court. As this action is based upon the ground that no title to the premises in dispute passed to Thomas by the sale and conveyance made by the guardian, we look alone for defects of such a character as will render the proceedings void. It is contended that the district court had no jurisdiction to license the sale of the lot, because it was not described in the petition presented by the guardian, asking for authority to make the sale. It is strenuously argued by defendants' counsel that it is not essential that such a petition should contain any description of the real estate. We will proceed to the consideration of the point. Sections 42, 43, 47, 48, 53, c. 23, Comp. St., are as follows:

“Sec. 42. When the income of the estate of any person under guardianship, whether as a minor, insane person, or spendthrift, shall not be sufficient to maintain the ward, and his family, or to educate the ward when a minor, or the children of such insane person or spendthrift, his guardian may sell his real estate for that purpose, upon obtaining a license therefor, and proceeding therein as provided in this chapter.

Sec. 43. When it shall satisfactorily appear to the court, upon the petition of any such guardian that...