CHAMPLIN
J.
Appellants
presented a claim before the commissioners to hear claims
against the estate of Charles H. Darrow, deceased, as
follows:
"Estate
of Charles H. Darrow, Deceased, to George Schlee and Mary
Finison, Dr.:
1883.
December 24th, to amount received by Jacob Berner, as
guardian of
|
George
Schlee, and Mary Schlee, nee Finison, on sale of real
estate
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of
said wards by virtue of a license from the probate
court for the
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county
of Ingham, and a bond filed in said court previous
thereto,
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with
said Charles H. Darrow as surety, and adjudged due to
said
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George
Schlee and Mary Finison from said Berner and said
surety on
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said
bond, by an order made and entered in said probate
court on the
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twenty-fourth
day of December, 1883, and on appeal to the circuit
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court
for said county affirmed by a judgment made and
entered therein
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on
the ninth day of March, 1885
.......................................
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$612
|
82
|
1885.
November 24, to interest thereon from December 24
1883, to date, .
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82
20
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1885.
November 3d, to costs taxed on said judgment on
appeal, ...........
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68
10
|
|
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------
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Total
.............................................................
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$763
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12
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--Which
they disallowed, and plaintiffs appealed to the circuit court
for the county of Ingham, where the matter was tried before
the circuit judge without a jury, who made a written finding
of facts and law, as follows:
"First.
That on the ninth day of June, 1870, the said appellants,
George
Schlee and Mary Finison, were possessed in fee of lot 3, in
block C, in the 4th ward of the city of Lansing, in said
county of Ingham, and were of the age of seven and ten
years, respectively.
"Second.
That on said ninth day of June, 1870, a proper writing,
purporting to be a petition of one Jacob Berner, bearing
date the day and year aforesaid, representing the said
appellants to be of the age of seven and ten years
respectively, and said Berner to be next of kin to them,
and asking that he be appointed their
general guardian, was filed in the probate court for said
county, which said petition was neither signed or verified.
"Third.
That on said ninth day of June, 1870, letters of
guardianship of said appellants were issued by said probate
court to said Berner, and the general guardian's bond
of said Berner, properly approved, was filed in said court.
"Fourth.
The following proceedings were thereafter had in said
probate court for the sale of said real estate of said
appellants, as appears by the records and files of said
court:
"(a)
On the eighth day of September, 1870, the petition of
said Berner, as such guardian, setting forth that said
appellants were of the age of eight and ten years
respectively, and were without means of support, other
than said real estate, and that the income from said real
estate was insufficient for their support and education,
and praying for license to sell the same for that
purpose, was filed therein.
"(b)
On the tenth day of September, 1870, an order was made by
said court appointing October 31st, at one o'clock in
the afternoon, for the hearing of said petition.
"(c)
On the twelfth day of November, 1870, a license was
issued by said court, and therein said Berner was
directed to give notice of such sale by posting notices
thereof in three of the most public places in the city of
Lansing, and by publication thereof in a newspaper
printed in the county of Ingham for six successive weeks
next preceding such rule.
"(d)
On same day a bond on sale of real estate, of which the
annexed, marked 'Exhibit A,' is a copy, was
written upon the records of said court, signed by said
Berner, as principal, and said Charles H. Darrow, now
deceased, as surety; and under said bond so written upon
said records was an approval thereof by the judge of
probate of said county, in words and figures as appears
by the copy thereof hereto annexed, Exhibit A.
"(e)
On same day the guardian's oath of said Berner,
before sale, was filed in said court.
"(f)
On the fourth day of April, 1871, a report of sale,
signed by said Berner as such guardian, was filed in said
court, setting forth the sale of said real estate, in
pursuance and by virtue of said license and bond, to one
Fidelia Kinzle, for $650, on the twenty-sixth day of
December, 1870, and the giving of notice prior thereto by
publication, etc., and by posting in three of the most
public places in the 'City of Lansing.' Attached
to said report is the affidavit of O.A. Jennison,
'book-keeper of the Lansing State Republican,'
showing publication of notice of said sale
in said paper for six successive weeks, and that the
first publication was on the twenty-fourth day of
November, 1870. Also thereunto attached is a statement of
said Berner, in writing, signed by him, but not verified,
showing the posting of such notice in three public places
in the 'City of Lansing' six weeks preceding the
day of such sale.
"(g)
On said fourth day of April, 1871, an order confirming
said sale was made and entered by said court.
"(h)
On the fifth day of April, 1871, an affidavit of O.A.
Jennison, as book-keeper of the Lansing State Republican,
verified by him on the fourth day of April, 1871, showing
publication of said order of hearing of said petition for
license to sell said real estate, in said paper once in
each week for
six successive weeks, and that the first publication was on
the twenty-second day of September, 1870, was filed in said
court.
"Fifth.
On said twenty-ninth day of December, 1870, said Berner, as
such guardian, sold at guardian sale, pursuant to said
license, bond, and notice, the said real estate
hereinbefore described, to Fidelia Kinzle, for $650, and on
the fourth day of April, 1871, duly executed and
acknowledged a deed of conveyance thereof to said Kinzle,
and received in payment of said purchase price $150 cash,
and a mortgage from said Kinzle on said premises for the
balance, payable in five equal annual payments, with
interest at seven per cent. per annum. There was no actual
delivery of the deed, but it remained in Berner's
possession, with the understanding that he should have it
recorded with his mortgage, and thereafter deliver it to
Kinzle. This he failed to do, and the deed was never
recorded or delivered.
"Sixth.
Shortly after the execution of said deed Kinzle went into
possession of the premises thereunder, has ever since
remained in possession, and has made payments to Berner on
said mortgages as follows:
April
15, 1872, ......
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$120
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April
14, 1873, ........
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50
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January
1, 1877, .......
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35
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April
15, 1877, ........
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20
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September
30, 1879, ....
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30
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October
2, 1879, .......
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10
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"Seventh.
On the sevententh day of May, 1881, said Berner was cited to
appear, on petition of said Mary Schlee, nee Finison, at said
probate court, on seventh day of June, 1881, and render an
account of his guardianship; and at said time and place appeared in person, but failed and refused to
render any account whatever, and was thereupon removed from
such guardianship by an order made and entered by said court.
"Eighth.
No support, education, or maintenance was provided by said
Berner for said wards and appellants, and no part or portion
of the proceeds of said sale of real estate was expended by
him on their behalf, or for their benefit, but the whole
thereof so received by him was and is appropriated by him to
his own use.
"Ninth.
Said appellants arrived at their majority,--said Mary Finison
in May, 1880; said George Schlee in 1882; and on or about May
1, 1883, executed and delivered to said Kinzle their warranty
deed of conveyance of said premises for the consideration
therein expressed of $400, of which the annexed, marked
'Ex. H,' is a true copy. Said conveyance was made by
said appellants on account of the claim of said Kinzle that
the title he had obtained by said guardian's deed was
questionable, and in consideration of the payments he had
made on said purchase price of said premises to Berner, and
in reliance on the advice of their attorney that they had a
legal claim against Berner and his surety on said bond for
the amount of said payments, and as a proper and equitable
adjustment of the matter as between them and Kinzle.
"Tenth.
On the twenty-fourth day of December, 1883, an order granting
the said George Schlee and Mary Finison leave to sue on said
bond, of which the annexed, marked 'Exhibit B,' is a
copy, was made and entered in said probate court.
"Eleventh.
On the sixth day of June, 1885, the said order, on the appeal
of said Charles H. Darrow, was affirmed by a judicial order
of the circuit court for said county, entered nunc pro tunc
as of the ninth day of March, 1885, of which the annexed,
marked 'Exhibit C,' is a copy.
"Twelfth.
The said Charles H. Darrow departed this life on the
twenty-eighth day of May, 1885, and the claim, of which the
annexed, marked 'Exhibit D,' is a copy, together with
a certified copy of the judicial order, 'Exhibit C,'
and of the bond, 'Exhibit A,' were duly filed with
the commissioners on claims against his estate, and a hearing
thereupon had.
"Thirteenth.
The full amount found due from said Berner to said
appellants in said probate order still remains unpaid.
"Upon
the foregoing facts the conclusions of law are as follows:
"First.
That the sale so made by said Berner to said Kinzle was wholly illegal and invalid, and of no force
and effect whatever, as against said appellants, and did
not divest their title to said land.
"Second.
That said
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