Lynch v. Kirby

• Decision Date: 17 April 1877
• Citation: 36 Mich. 238
• Court: Michigan Supreme Court
• Parties: Ellen Lynch and others v. Michael Kirby and another

36 Mich. 238

Ellen Lynch and others v. Michael Kirby and another

Supreme Court of Michigan

April 17, 1877

Submitted on Briefs April 5, 1877

Error to Wayne Circuit.

This is ejectment by the heirs of John Heffernin for the recovery of the "south equal undivided half" of certain land of which he died seized. The defendants claimed title under a guardian's sale. The judgment below was for defendants and plaintiffs brought error.

Judgment affirmed, with costs, and the cause remitted.

Henry M. Duffield, for plaintiffs in error, as to the insufficiency of the petition for license to sell, cited.-- Comp. L. 1871 § 4582; Ryder v. Flanders, 30 Mich. 336; that the appointment of a new guardian to execute a deed of conveyance in pursuance of a sale of the land made by the previous guardian, and the deed of such new guardian, were unauthorized and void.--Burt v. Cobb, 9 Gray 397; Rorer on Judicial Sales, 5, 144, § 363; Gridley v. Phillips, 5 Kans. 349; Davis v. Brandon, 2 Miss. 154; Wortham v. Cherry, 3 Head (Tenn.), 468; that there being no evidence that Eliza Heffernin's interest or share was sold at the guardian's sale, she should have been allowed to recover her share.--Comp. L. 1871, § 6231.

Moore, Canfield & Warner, for defendants in error, as to the sufficiency of the petition, cited.-- Comp. L. 1857, § 3094; that the probate court had jurisdiction and authority to appoint a new guardian to execute the deed of conveyance in pursuance of the sale previously made by the former guardian.-- Wagner v. Cohen, 6 Gill 102; Halliburton v. Sumner, 27 Ark. 460; Sheldon v. Wright, 7 Barb. 39; Sypert v. McCowan, 28 Tex. 635; Rorer on Judicial Sales, §§ 122, 362; Evans v. Spurgin, 6 Gratt. 107; Heirs of Piatt v. Heirs of McCullough, 1 McLean 69; Osman v. Traphagen, 23 Mich. 80; Gridley's Heirs v. Phillips, 5 Kans. 349; Peterman v. Watkins, 19 Ga. 153; that the instruction that Eliza Heffernin could not recover unless all the plaintiffs recovered was correct; that the familiar rule which requires parties suing jointly to show a joint right of recovery applies in this case; that the pleadings and proofs must agree.--Moore's Lessee v. Armstrong, 10 Ohio 11; Toomey v. Pierce, 42 Cal. 335; S. C., 49 Cal. 307; Murray v. Webster, 5 N. H., 391; May v. Slade, 24 Tex. 208.

OPINION

Graves, J.

First, The petition of the guardian for leave to sell was not fatally defective. It represented that the whole property of the wards consisted of their interest in the two parcels of real estate, and that over one hundred dollars was due and owing towards one parcel, whilst the other was burdened by a mortgage of fifty dollars then owned by John Kirby.

It further represented in substance that the income of the property was inadequate to pay the debts, interest and taxes, and maintain, support and educate the wards.

There was sufficient to give jurisdiction and enable the court to take cognizance of the matter.-- § 3076, ch. 101; and § 3094, ch. 102, C. L. 1857.

If any of the statements were in fact untrue, still the attaching of jurisdiction would not be thereby hindered.

Second, The guardian who received the license, at length made the sale and reported it to the court, and the court confirmed the sale and ordered conveyance.

The death of the guardian before conveyance could not and did not invalidate the sale. That was complete. The purchasers were entitled to conveyance, and no reason is perceived why the successor in the deceased guardian's place might not be directed to complete the transaction by deeding and receiving the price.

There is no express provision that conveyance must be made by the same person who as guardian effects the sale, and nothing is discovered which implies any necessity for such a rule.

On the contrary, it cannot be doubted but that such a regulation would often lead to great embarrassment and useless expense. Every sale not carried out by deed would necessarily fall to the ground in case of death, resignation or removal of the guardian. The act of conveyance is rather official than personal, and more a function of the place than a matter appropriated to any individual, and I think the probate court was warranted in authorizing and directing the new guardian to make the conveyance which was due in law and which the former guardian was at his death lawfully required to execute.

The new guardian succeeded to such of the duties of the place as remained unperformed.

The sale was already consummated, closed and established. It was a matter finished. What remained to be done was to give the deeds and receive and account for the money.

The oath required in connection with the sale would have been inappropriate on the part of the new guardian. It was not applicable to the situation and duties, and was properly omitted.

A bond was given, and in the same penalty as that which had been required for the bond of the deceased guardian, and it contained conditions proper to secure the duties required of the new guardian.

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