Mohr v. Porter

• Court: Wisconsin Supreme Court
• Writing for the Court: TAYLOR
• Citation: Mohr v. Porter, 51 Wis. 487, 8 N.W. 364 (Wis. 1881)
• Decision Date: 24 March 1881
• Parties: MOHR v. PORTER AND ANOTHER.

51 Wis. 487

8 N.W. 364

MOHR

v.PORTER AND ANOTHER.

Supreme Court of Wisconsin.

Filed March 24, 1881.

Appeal from circuit court, Rock county.

Cotzhausen, Sylvester & Scheiber, for respondent.

H. S. Winsor and S. U. Pinney, for appellants.

TAYLOR, J.

This is an action of ejectment, brought to recover a certain tract of land which had been sold by the guardian of the plaintiff during his alleged insanity. After the sale the plaintiff was declared sane by the proper court, his guardian was discharged, and rendered to the proper court an account of his guardianship, in which he accounted for the money received on the sale. This court decided in the case of Mohr v. Tulip, 40 Wis. 66, which was an action brought by the respondent to recover of Tulip another part of the lands sold by said guardian at the same sale and under the same proceedings to a different purchaser, that the petition filed by the guardian in the probate court was sufficient in substance to call into exercise the powers of that court; or, in other words, that by the filing of the petition the court acquired jurisdiction of the subject-matter of the proceeding; that the petition, although somewhat imperfect, was not so defective as to be void. It must be held, therefore, in this court that the proceedings offered in evidence by the defendants to show a sale by the guardian of the plaintiff were sufficient to give the probate court jurisdiction to proceed in the matter; but it was also held in that case that the proceedings were void because the notice required by statute to be given to the parties interested was not given the requisite length of time before the hearing of the petition, and consequently the court did not obtain jurisdiction to make the order for sale or to proceed further in the matter. The case was said to be governed by the rules of law which govern the sale of lands by executors and administrators to pay the debts of the deceased, and that this court has repeatedly held that in such cases it is absolutely essential that the statutory notice for the hearing should be given, otherwise the whole proceedings are void.

The case of Mohr v. Maniere, 101 U. S. 417, was also an action brought by this respondent to recover another parcel of land sold by the same guardian at the same sale and under the same proceedings. This case was tried in the circuit court of the United States, and certified to the supreme court of the United States upon a difference of opinion of the judges presiding at the circuit. That court held the sale valid, and that the want of statutory notice did not render the same void. These differing opinions of the state and United States courts leave the parties purchasing at that guardian sale in the anomalous position that, if the purchaser or his grantee, happens to be a resident of some state other than the state of Wisconsin, he has a good title to the land purchased, because in that case his rights are determined by the supreme court of the United States; but if the purchaser be a resident of this state, and his rights must be determined by the decision of the supreme court of this state, he has no title. This conflict of opinion between this court and the supreme court of the United States, which has led to this peculiar result, which makes the title to real estate situated in this state depend upon the residence of the party in possession, has induced us to reconsider the question at issue between the two courts, with a view of determining, if we can, which of the two courts are right; and if it be found that this court has mistaken the law governing the case, then to recede from the opinion in Mohr v. Tulip, and agree with the supreme court of the United States in Mohr v. Maniere.

In the case of Mohr v. Mainere, the supreme court of the United States, after citing the sections of our statute requiring notice of the hearing of the application of the guardian for a license to sell to be given, says: “It is apparent from these sections that the publication of notice of the hearing is only intended for the protection of parties having adversary interests in the property, and is not essential to the jurisdiction of the courts. It may be dispensed with if the parties having such interests consent to the sale. The consent could not be given by the lunatic, for he, by his condition, would be incapable of giving consent, and yet upon the others' consent the court could proceed to act without notice to him. Nor, indeed, was there any reason why publication of notice should be made for other parties than those who held adversary interests. The lunatic could not be affected by such publication any more than by his consent. The application of the guardian to the county court was required by the law only as a check against any improvident action by him. There was nothing in the nature af the proceedings which required a notice of any kind, so far as the rights of the lunatic are concerned. The law would have been free from objection had it simply authorized, upon the consent of the court, a sale of the lunatic's property for the payment of his debts.” Then, after discussing the doctrine of that court, as announced in the case of Grignon's Lessee v. Astor, and approving of the decision in that case, finally disposes of the case upon another ground, and thus briefly states it: “In Mohr v. Tulip, the supreme court of Wisconsin overlooked the distinction between the position of the lunatic, who was in fact the applicant through his representative, and that of parties having an adversary interest in the property. He can no more object to the sale of his property for want of notice to them, if the provisions of law intended for his protection were followed, than a plaintiff in a personal action could object to a sale upon his own judgment on the ground that the latter was prematurely entered. The object of notice or citation in all legal proceedings is to afford to parties having separate or adverse interests an opportunity to be heard; it is not for the protection of the applicant or suitor. The statute declares that upon the existence of certain facts the sale of the lunatic's estate may be made, and when these appear in the petition of the guardian the court had jurisdiction to act, so far as his rights were concerned, as fully so as if the statute had so declared in terms, whatever may be the effect of its proceedings upon the interest of parties not properly before the court. We see no reason, therefore, so far as his interests are affected, to depart from the doctrine of Grignon's Lessee v. Astor.”

This court agrees with the supreme court of the United States that the object of the notice is to bring before the court parties interested in the proceedings, and expressly holds that the notice is in the nature of process to give the court jurisdiction of the persons of the parties interested. In Mohr v. Tulip the court say that “the required notice was not given of the hearing of the application for a license. Such notice was in the nature of process to bring the proper parties before the court, and was essential to confer jurisdiction over the proceedings upon the county court.”

This is plainly the result of the decisions of this court, so far as it has had occasion to consider the effect of not giving such notice in these proceedings, or to pass upon the analogous questions relating to the jurisdiction of probate courts in these matters.” This court then cites the cases of Sitzman v. Pacquette, 13 Wis. 292;Gibbs v. Shaw, 17 Wis. 197;Blodgett v. Hill, 29 Wis. 176;Chase v. Ross, 3 Wis. 267;McGrub v. Bray, 36 Wis. 333;Reynolds v. Schmidt, 20 Wis. 374. After citing the several sections of the statute governing the proceedings in cases of this kind, the court further say: “The question then arises, was not this failure to give the statutory notice a fatal defect in the proceeding? Upon the rule laid down in the above decisions, this question must receive an affirmative answer. There is no possible escape from this conclusion unless the position of the learned counsel for the defendant is correct, namely, that the court had previously acquired jurisdiction of the res under a sufficient petition, and the failure to give that notice did not oust the jurisdiction. But, obviously, this view cannot be adopted without departing from the rule laid down by this court on the subject; for it has been held, whenever the question has arisen, that, to confer jurisdiction over the proceeding, notice, according to the requirements of the statute, must be given to the persons interested in the estate; otherwise a sale cannot be sustained, even in a collateral action.”

The reason given why the want of notice renders the proceeding void in the cases in New York, which are cited with approval by this court, in Corwin v. Merritt, 3 Barb. 341;Bloom v. Burdick, 1 Hill, 130; and Schneider v. McFarland, 2 N. Y. 457, is that such notice is in the nature of first process to summon the parties, and is indispensable to enable the court to get jurisdiction of the persons of the parties interested in the proceedings.” This, it seems, is the true ground to place it on, and the only one consistent with holding the want of notice fatal to the proceedings. The law which authorizes the probate court to license an executor or administrator to sell real estate for the payment of the debts of the deceased, treats the heirs at law, and, in case of a will, the devisees, as having an interest adverse to the administrator or executor in such proceedings, and requires notice to be given to such parties having adverse interests before any authority shall be granted. As to them it is treated by the law regulating the proceedings as a personal action, and the court does not therefore obtain jurisdiction of the persons of such parties unless they are served with notice as required by law. In this view of the case we think the decisions of this court, in...