Hubermann v. Evans

• Decision Date: 21 January 1896
• Docket Number: 5731
• Citation: 65 N.W. 1045,46 Neb. 784
• Parties: ANNA C. HUBERMANN ET AL. v. MARY B. EVANS ET AL
• Court: Nebraska Supreme Court

65 N.W. 1045

46 Neb. 784

ANNA C. HUBERMANN ET AL. v. MARY B. EVANS ET AL

No. 5731

Supreme Court of Nebraska

January 21, 1896

ERROR from the district court of Douglas county. Tried below before KEYSOR, J.

AFFIRMED.

Winfield S. Strawn, for plaintiffs in error.

Wharton & Baird and B. G. Burbank, contra.

OPINION

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 Hubermann, deceased, as a common source. On the 15th day of December, 1878, August Hubermann died in Douglas county, this state, intestate, seized 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. Hubermann left surviving him three minor children, the plaintiffs herein, and a widow. The latter was subsequently 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. HUBERMANN ET AL MINORS.

"Now comes Ellenor Hubermann, guardian herein of Anna C Hubermann, Emma Hubermann, and Henry Hubermann, 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 four (4), 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 the real estate of the minors situated in Douglas county, Nebraska. 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 defendant claims title to, and holds 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 sections 42 et seq. of chapter 23, Compiled Statutes, 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 merely irregular, but is absolutely void. (Ludlow v. Culbertson Park, 4 Ohio 5; Newcomb v. Smith, 5 Ohio 447; Goforth v. Longworth, 4 Ohio 129; Bell's Appeal, 66 Pa. 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 briefs and 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 defendant's 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, and 53 of chapter 23, Compiled Statutes, 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 it would be for the benefit of his ward that his real estate, or any part thereof, should be sold, and the proceeds thereof put out at interest or invested in some productive stock, his guardian may sell the same for that purpose, upon obtaining a license therefor, and proceeding therein as hereinafter provided."

"Sec. 47. In order to obtain a license for such sale, the guardian shall present to the district court of the county in which he was appointed guardian a petition therefor, setting forth the condition of the estate of his ward, and the facts and circumstances on which the petition is founded, tending to show the necessity or expediency of a sale, which petition shall be verified by the oath of the petitioner.

"Sec. 48. If it shall appear to the court from such petition that it is necessary or would be beneficial to the ward that such real estate or some part of it should be sold, the court shall thereupon make an order directing the next of kin of the ward, and all persons interested in the estate, to appear before such court at a time and place therein to be specified, not less than four nor more than eight weeks from the time of making such order, to show cause why a license should not be granted for the sale of such estate."

"Sec 53. If, after full examination, it shall appear to the court either that it is necessary or that it would be for the benefit of the ward that...