Montour v. Purdy

• Decision Date: 01 January 1865
• Citation: 11 Minn. 278
• Parties: JOSEPH MONTOUR vs. SAMUEL H. PURDY et al.
• Court: Minnesota Supreme Court

11 Minn. 278

JOSEPH MONTOURvs.SAMUEL H. PURDY et al.

Supreme Court of Minnesota.

Appeal from order of district court, Goodhue County.

Action in ejectment. The answer denied "each and every material allegation in the complaint," and then sets forth the proceedings by which the title of plaintiff while an infant under guardianship, is claimed by defendant to have passed to him through a sale by plaintiff's guardian pursuant to a license issued by the probate court.

Plaintiff demurred to the answer, and the demurrer was overruled.

Points and authorities for appellant: —

The complaint was in the usual form, and sufficient.5 Minn. [178];8 Minn. [257].The first defense consists of a denial of each and every material allegation of the complaint, and is bad as a denial.The second defense is bad, because it admits that the plaintiff once owned the premises, and fails to show a valid title from him by office grant — that is, it shows that the grant was made for the purpose of maintaining and educatingthe plaintiff, and does not show such a compliance with chapter 38 of the Compiled Statutes, as renders the guardian's sale valid or sufficient to divest plaintiff's title.The validity of all office grants depends upon a strict compliance with all the provisions of the statute, by virtue of which they are made, and if such statutes are not strictly followed, the grant is irregular and void.Such is the general rule of law declared from all the cases in regard to tax deeds, sheriff's deeds, executors' deeds, administrators' deeds, guardians' deeds, proceedings to condemn and take land for public or quasi public uses, as for roads, streets, etc., forfeitures, and all transfers of real estate by virtue of statutes, and without the act of the owner.2 Washburn RealProp. 555, 556; Willard Real Estate, 445 to 458;Davison v. Gill,1 East. 64;Atkins v. Kinnan,20 Wend. 241;Ford v. Walsworth,15 Wend. 449;Palmer v. Oakley,2 Doug.(Mich.) 433;Sibley v. Waffle,16 N. Y. 180;Corwin v. Merritt,3 Barb. 341;Gregory v. McPherson,13 Cal. 562;Dakin v. Hudson,6 Cow. 221;Pinney v. Fridley,9 Minn. [34.]By the common law, a father or mother, as guardians or not, had no further power over the estate of the ward, than to receive the rents and profits thereof, and he was bound to maintain the infant out of his own property, and the English court of chancery had no power to direct a sale of the infant's real estate for his maintenance or education.2 Kent Com., titles, "Parent and Child,""Guardian and Ward," and "Infants;"Taylor v. Philips.2 Ves. 23;Russel v. Russel, 1 Molloy, Ch. 525.Such power extended only to his personal estate and the rents and profits of his lands; and when such power was conferred by act of the legislature upon the court of chancery in the State of New York in 1814, it was held that such statute was in derogation of the ancient law and that the jurisdiction of thatcourt in such cases rested altogether upon the statute.Rogers v. Dill6 Hill, 415; Willard Real Estate, 447.

The answer shows that this sale was made for the purpose of maintenance and education.The guardian is nowhere authorized to make a sale for that object except by chapter 38, Compiled Statutes; his powers in that behalf rest solely upon a statute in derogation of the common law.Section 1 of chapter 38, provides, substantially, that when the income of a ward is insufficient to maintain or educate him, his guardian "may sell his real estate for that purpose, upon obtaining a license therefor and proceeding therein as provided in this chapter."His power to sell, therefore, does not vest until the guardian has obtained the license of a judicial officer, and has also conformed to the statute in his proceedings in that behalf.In this case no valid license was obtained, and the proceedings did not conform to the statute.

Our probate courts, under the organic act, had no original or general jurisdiction but all its powers depended solely upon the statutes of the assembly, and, therefore, such courts then were upon a par with the surrogate's court of the State of New York, and the uniform decisions of that state are to the effect that the surrogate's courts of that state are courts of inferior and limited jurisdiction; its records must show jurisdiction, and its powers depend altogether upon the statutes, and its proceedings are valid or void, accordingly as they conform to the statutes or not.Sibley v. Waffle,16 N. Y. 180, 185;Ford v. Walsworth,15 Wend. 449;Corwin v. Merritt,3 Barb. 341;Atkins v. Kinnan,20 Wend. 241;People v. Corlies, 1 Sandf.228;People v. Barnes,12 Wend. 492, 494;Sheldon v. Wright,5 N. Y. 497.

Section 1, above cited, requires the guardian to obtain the license from sucha court, and from the above authorities it is clear that such license is void, unless it further appears that the officer had competent authority to issue it.Section 6 provides that in order to obtain a license for such sale, the guardian shall present to the probate 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.Section 7 provides, that if it shall appear 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 the 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.Section 8 provides that a copy of such order shall be served on the next of kin of such ward, and all persons interested in the estate at least fourteen days before the hearing of the petition, or shall be published at least three successive weeks in such newspaper circulating in the county as the court shall specify in such order Section 10 provides that the judge of probate, at the time and place appointed in such order, or at such other time as the hearing shall be adjourned to, upon proof of due service of the order, * * * shall hear and examine the proofs and allegations of the petitioners, and of the next of kin, and of all other persons interested in the estate, who shall think proper to oppose the application.Section 12 provides, that 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 the real estate, or some part, should be sold, such court may grant a license therefor, specifying therein whether the sale is to be made for the maintenance of the ward and his family, or for the education of the ward or his children, or in order that the proceeds may be put out or invested as aforesaid.

In this case, the answer does not show that any such petition was ever presented or verified in any way, yet the presentation of such a petition, so verified, was a condition precedent to any action by the probate judge.On this point, the case of Sibley v. Waffle,16 N. Y. 180, is conclusive.The court of appeals of New York held in that case that a petition duly verified, and setting forth certain facts, must be presented to the court to give it jurisdiction for any purpose, pp. 185, 187; that bench concurred on that ground.But assuming that such a verified petition had been duly presented, that did not authorize the court to do more than set a time and place for hearing, distant not less than four weeks, and to issue the prescribed notice — his powers are derived from this statute; and it gives him power to act, step by step, when, and when only, the prior steps have been properly taken.The order for hearing must rest upon a proper petition, and, according to section 10, the hearing rests upon the issuance and service of such order, and, by section 12, the power to grant a license depends upon such a hearing.Sibley v. Waffle,16 N. Y. 190.The provisions of this chapter produce publicity and deliberation, and when followed, draw attention to the proceedings, and tend to close the door to fraud, which thrives upon secrecy and dispatch.The answer here shows that the guardian was appointed and licensed to sell at one sitting of the court,sections 7,8, and10, being entirely ignored.The inference is irresistible, that in this case the guardian was appointed, not for the real purpose of guarding the ward and his estate, but for the purpose of stripping him of his inheritance; and if a license can be obtained by such proceedings, it is evident with what facility infants can be despoiled of their property, and in what a helpless situation the legislature has placed them, in contravention to the spirit and policy of the common law.French v. Hoyt,6 N. H. 370, was a case like the one at bar in essential particulars.Second, as has been shown, this power of a guardian to sell his ward's real estate for any purpose is a statutory power depending upon two conditions precedent; and admitting now that the first as to the license appears, yet that in no way excuses the absence of the other — his power to sell, nevertheless, depends upon his proceeding as prescribed by chapter 38;seesection 1, p. 414.Therefore, even if the proper valid license is procured, yet no power to sell is thereby conferred; or, rather, it only confers power to sell as prescribed by statute; and if the subsequent proceedings of the guardian before sale do not conform to the statute, the sale is void for want of power to put it up at auction.

The first requirement of the statute after a license is the proper oath; it must be taken before fixing on the time and place of...