Hugo v. Miller

• Decision Date: 01 June 1892
• Citation: 50 Minn. 105,52 N.W. 381
• Parties: HUGO v MILLER.
• Court: Minnesota Supreme Court

50 Minn. 105

52 N.W. 381

HUGOvMILLER.

Supreme Court of Minnesota.

June 1, 1892.

(Syllabus by the Court.)

1. A change in the phraseology of a statute made by means of a general revision of the entire body of the law cannot be regarded as so clearly indicative of a special design and purpose on the part of the legislature as when the change is made by direct amendment.

2. An administrator licensed to sell real estate under the provisions of Gen. St. 1878, c. 57, § 1, etc., in due time took and subscribed to an oath that in making such sale he would “exert his best endeavors to dispose of the real estate *** in such manner as will be most advantageous to the persons interested” in the estate. Held to be, in substance, the oath prescribed in section 45 of said chapter.

3. The affidavits of publishing and posting notices of sale in this case examined, and held sufficient.

4. Where the affidavit of posting points out to the probate court the exact places of such posting, and the court, its duty being to pass upon the sufficiency of the notice as well as the regularity of the sale itself, is satisfied that the places named are three of the most public places in the county, and has so found and recited in its order of confirmation of the sale, the determination of the court on the mere question of the publicity of these places must be held conclusive in all collateral proceedings.

Appeal from district court, St. Louis county; SEVERANCE, Judge.

Action by N. Frederick Hugo against Allen J. Miller to determine an adverse claim to real estate. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with an order to enter judgment for defendant.

Cash & Williams, for appellant.

W. B. Phelps, for respondent.

COLLINS, J.

Action to determine an adverse claim made to a city lot. The defendant's claim of title to the entire property was based originally upon an administrator's sale made in the year 1884, and the validity of this sale is the question now before us. Below it was declared invalid, the court holding plaintiff to be the owner of an undivided seven ninths, and defendant, through a conveyance from one of the heirs, the owner of the remaining two ninths. This result which was embodied in the judgment as ordered and entered, was inevitable, unless the sale can be sustained. There were three main objections to the proceedings, and these will be considered in their order, and, as preliminary,-for it will have to be stated somewhere in the opinion,-it may be well to observe that the sale in question was duly confirmed in the probate court, by an order in which all of the requisites of a valid sale were specially mentioned, and were stated to have been complied with by the administrator when making the sale. On the trial the defendant, in support of his claim of title, produced in evidence the order of confirmation, and, among other things, three certain affidavits found in the files of the proceedings in probate court,-one being the oath or affidavit taken and subscribed by the administrator before fixing on the time and place of sale; another being that of the administrator, in respect to the posting of three notices of sale; and the third that of a printer, in regard to the publication of the notice of sale. The plaintiff rested his contention that the sale was unauthorized and irregular upon the contents of these three affidavits, making no proof himself of any irregularities, and claiming that fatal defects in the proceedings, sufficient to vitiate the defendant's title, asserted through the sale, had fully and conclusively been made to appear by their production in evidence. These affidavits we will proceed to consider.

1. The statute in force when this sale took place (Gen. St. 1878, c. 57, § 45) required of the administrator, before fixing upon the time and place of sale, that he take and subscribe an oath, “in substance, as follows: That in disposing of the estate *** he will use his best judgment in fixing on the time and place of sale, and will exert his utmost endeavors to dispose of the same in such manner as will be most for the advantage of all persons interested.” The oath or affidavit before mentioned as that produced by defendant upon the trial was that the person taking the same, the administrator, “will exert his best endeavors to dispose of the real estate *** in such manner as will be most advantageous to the persons interested” in the estate. It will be noticed that no reference was specially made in the affidavit to the matter of fixing on a time and place of sale, but otherwise the affidavit closely followed the language of the statute. In terms, a literal adherence was not required, but it was essential that, in substance, the oath be that prescribed in section 45, supra. We have therefore to first consider and determine whether there was a substantial compliance with the statute in the wording of the affidavit, which was subscribed and sworn to by the administrator before he proceeded to fix and to give notice of the time and place of sale. In a legal sense, the substance of a statutory requirement is that which is essential in order to comply with it. The words “in substance” are used in opposition to form, and to signify that adherence to the form or language of the statute is not required if the real...