Myers v. McGavock

• Decision Date: 22 March 1894
• Docket Number: 5059
• Citation: 58 N.W. 522,39 Neb. 843
• Parties: SUSAN B. MYERS ET AL. v. ALEXANDER MCGAVOCK ET AL
• Court: Nebraska Supreme Court

58 N.W. 522

39 Neb. 843

SUSAN B. MYERS ET AL. v. ALEXANDER MCGAVOCK ET AL

No. 5059

Supreme Court of Nebraska

March 22, 1894

ERROR from the district court of Douglas county. Tried below before HOPEWELL, J.

AFFIRMED.

Guy R C. Read and William D. Beckett, for plaintiffs in error:

The statute of limitations had not run against the action. (State v. Scott, 22 Neb. 628; Trester v Missouri P. R. Co., 23 Neb. 242; Koenig v. Chicago B. & Q. R. Co., 27 Neb. 699; Parker v. Starr, 21 Neb. 680; McCann v. McLennan, 2 Neb. 289; People v. Gosper, 3 Neb. 310; Albertson v State, 9 Neb. 437; Angell, Limitations; secs. 204, 246; Murray v. Baker, 3 Wheat. [U. S.], 541, Ruggles v. Keeler, 3 Johns. [N. Y.], 264; Erskine v. Messicar, 27 Mich. 84.)

The guardian who made the sale was not the guardian of the persons of the minors, but only for their property in the state of Iowa, and he was not authorized to make an application to sell their property in this state. The guardian's sale and deed were void. (Secs. 58, 110, ch. 17, Gen. Stats., 1873; Freeman, Void Judical Sales, sec. 10; Bell v. Love, 72 Ga. 125; Dooley v. Bell, 13 S.E. [Ga.], 284; Pryor v. Downey, 50 Cal. 388; Pryor v. Madigan, 51 Cal. 178; Paty v. Smith, 50 Cal. 153; Roche v. Waters, 72 Md. 264; Frederick v. Pacquette, 19 Wis. 541; Chase v. Ross, 36 Wis. 267; Trester v. Missouri P. R. Co., 23 Neb. 242.)

The sale and deed are void because no notice of the application for license to sell was given to the wards either personally or by publication or in any other manner. (Sitzman v. Pacquette, 13 Wis. 325; Frederick v. Pacquette, 19 Wis. 569; Blackman v. Bauman, 22 Wis. 611; Mohr v. Tulip, 40 Wis. 66; Mickel v. Hicks, 19 Kan. 578; Chicago, K. & N. R. Co. v. Cook, 43 Kan. 83; Bloom v. Burdick, 1 Hill [N. Y.], 130; Schneider v. McFarland, 2 N.Y. 459; Havens v. Sherman, 42 Barb. [N. Y.], 636; Stilwell v. Swarthout, 81 N.Y. 109; Pinckney v. Smith, 26 Hun [N. Y.], 524; Jenkins v. Young, 35 Hun [N. Y.], 569; Perry v. Adams, 98 N. Car., 167; Harrison v. Harrison, 106 N. Car., 282; Stancill v. Gay, 92 N. Car., 462; Taylor v. Walker, 1 Heisk. [Tenn.], 734; Frazier v. Pankey, 1 Swan [Tenn.], 75; Wheatley v. Harvey, 1 Swan [Tenn.], 484; Winston v. McLendon, 43 Miss. 254; Root v. McFerrin, 37 Miss. 17; Planters Bank v. Johnson, 7 S. & M. [Miss.], 449; Gwin v. McCarroll, 1 S. & M. [Miss.], 351; Smith v. Denson, 2 S. & M. [Miss.], 326; Donlin v. Hettinger, 57 Ill. 348; Tell v. Young, 63 Ill. 106; Marshall v. Rose, 86 Ill. 374; Babbitt v. Doe, 4 Ind. 355; Doe v. Anderson, 5 Ind. 33; Guy v. Pierson, 21 Ind. 21; Doe v. Bowen, 8 Ind. 197; Good v. Norley, 28 Iowa 188; Fiske v. Kellogg, 3 Ore., 503.)

A sale by guardian without notice to ward is void where statute requires all persons interested residing in the state to be cited when such application is made. (Rule v. Broach, 58 Miss. 552; Hamilton v. Lockhart, 41 Miss. 460; Lyon v. Vanatta, 35 Iowa 521; Boyles v. Boyles, 37 Iowa 592; Arrowsmith v. Harmoning, 42 O St., 254; Perry v. Brainard, 11 O., 442; Mauarr v. Parrish, 26 O. St., 636; Musgrave v. Conover, 85 Ill. 374.)

Guardians' sale of real estate, without first giving bond required, is void. (Sparhawk v. Buell, 9 Vt., 41; Stewart v. Bailey, 28 Mich. 251; Ryder v. Flanders, 30 Mich. 336.)

On application to a court of equity for the support of a minor out of his separate estate, minors are always parties. (Tompkins v. Tompkins, 18 N.J. Eq., 303; Stephens v. Howard, 32 N.J. Eq., 244.)

A decided majority of the authorities is in favor of the position that notice to the minor whose real estate is to be sold is jurisdictional. (Freeman, Void Judicial Sales, sec. 16; Rorer, Judicial Sales, secs. 69-71.)

It has been the practice in Nebraska to give notice of some sort to the wards in cases of this kind. (Trumbull v. Williams, 18 Neb. 144; McClay v. Foxworthy, 18 Neb. 295.)

The guardian's sale was void, because a bond was required by the court to be given as a condition precedent to the sale, in accordance with the provisions of section 61 of chapter 23, Compiled Statutes, and no such bond was given. (McClay v. Foxworthy, 18 Neb. 297; McKeever v. Ball, 71 Ind. 398.)

The receipt of money, from illegal sale, by heirs after becoming of age, does not estop them from disputing its validity. Their attention must be called specially to the point. (Harmon v. Smith, 38 F. 482; Schnell v. City of Chicago, 38 Ill. 382; Messinger v. Kintner, 4 Binn. [Pa.], 97; Good v. Norley, 28 Iowa 188; Brant v. Virginia Coal & Iron Co., 93 U.S. 326; Crest v. Jack, 3 Watts [Pa.], 240; Knouff v. Thompson, 4 Harris [Pa.], 361; Mohr v. Tulip, 40 Wis. 66, 79; Whyte v. City of Salem, 4 Saw. [U. S. C. C.], 88; Whyte v. Smith, 4 Saw. [U. S. C. C.], 17; Hill v. Ep'ey, 31 Pa. St., 331; Boggs v. Merced Mining Co., 14 Cal. 367; Carpentier v. Thirston, 24 Cal. 268; Davis v. Davis, 26 Cal. 38; Fields v. Squires, Deady [U. S. C. C.], 396; Ryders v. Flanders, 30 Mich. 336; Stancill v. Gay, 92 N. Car., 462; Campbell v. Nesbitt, 7 Neb. 300.)

In much stronger cases than this the courts have refused to apply the doctrine of estoppel so as to prevent the recovery of property by an heir or ward against one who holds a void administrator's or guardian's deed for it. (Mohr v. Tulip, 40 Wis. 66, 79; Messinger v. Kintner, 4 Binn. [Pa.], 97; Good v. Norley, 28 Iowa 188.)

Francis A. Brogan, for defendant in error McGavock:

The defendants McGavock and Hobbie had acquired a perfect title by prescription at the commencement of this action in ejectment, and the statute of limitations had run and was a complete bar to the action of the plaintiffs. (State v. Babcock, 21 Neb. 602; White v. Blum, 4 Neb. 562; State v. Silver, 9 Neb. 89; Green v. Sanford, 34 Neb. 363; Tyrrill v. Lamb, 96 Pa. St. 464; Van De Harr v. Van Domseller, 56 Iowa 671; Quimby v. Claflin, 27 Hun [N. Y.], 611; Western Union Telegraph Co. v. Way, 83 Ala. 542; Alabama Great Southern R. Co. v. Smith, 81 Ala. 229; Ely v. Early, 94 N. Car., 1; Bigham v. Talbot, 63 Tex. 271; Harral v. Gray, 10 Neb. 187; Fraedrich v. Flieth, 64 Wis. 184.)

The first point urged is that the application should have been made by the guardian of the persons of the minors, instead of by the guardian of their property. There is no foundation for this either in reason, or in the terms of the statute, or in any adjudicated case. On the contrary the statute expressly says that it is the guardian who has been appointed, who should apply for leave to make the sale, and this has been uniformly held to mean the guardian of the property, not the guardian of the person or the natural guardian. (Perry v. Carmichael, 95 Ill. 519; Fonda v. Van Horme, 15 Wend. [N. Y.], 631; Porter v. Tudor, 9 Conn., 416; Otto v. Schlapkahl, 57 Iowa 226; Shanks v. Seamonds, 24 Iowa 131; Deugenhart v. Cracraft, 36 O. St., 549.)

The foreign court is presumed to have acted correctly in appointing a guardian. (Taylor v. Kilgore, 33 Ala. 214.)

A guardian of the property may remove his wards from one state to another without losing his relation to them, if the change is for the benefit of the wards, and is done with the consent of the surviving parent. (Pedan v. Robb, 8 O., 227; Wheeler v. Hollis, 19 Tex. 522; Townsend v. Kendall, 4 Minn. 412.)

The court hearing the application must determine whether a proper, authenticated copy of letters of guardianship from a foreign state has been presented to it, and its determination is final unless appealed from. It cannot be inquired into collaterally. (Menage v. Jones, 40 Minn. 254.)

This court has held that it will not reverse a judgment for failure to verify the petition upon a direct proceeding in error. (Fritz v. Barnes, 6 Neb. 435; Hershiser v. Delone, 24 Neb. 380; Johnson v. Jones, 2 Neb. 126.)

The same rule has been expressly held to apply to the verification by a guardian of the petition for license to sell real estate. (Hamiel v. Donnelly, 75 Iowa 93; Ellsworth v. Hall, 48 Mich. 407.)

The failure by an administrator to verify the petition under section 68 of chapter 23, Compiled Statutes, if it is a defect at all, does not affect the jurisdiction of the court, and cannot be attacked in a collateral proceeding. (Trumble v. Williams, 18 Neb. 144.)

A failure to formally approve the bond would not be fatal. (Emery v. Vroman, 19 Wis. 689; Pursley v. Hayes, 22 Iowa 11; Hamiel v. Donnelly, 75 Iowa 93.)

A failure to give the bond would not be fatal. (Watts v. Cook, 24 Kan. 278.)

When special statutory powers are conferred upon courts of general jurisdiction, or upon the judges thereof, and such powers are exercised judicially, that is, according to the course of common law and proceedings in chancery, their judgments cannot be attacked or impeached collaterally, and they are conclusively presumed to have the jurisdiction which they exercise. (Pulaski County v. Stewart, 28 Gratt. [Va.], 872; Mills v. Paynter, 1 Neb. 445; Miller v. Finn, 1 Neb. 289; State v. Buffalo County, 6 Neb. 461; Jennings v. Simpson, 12 Neb. 565; Bryant v. Estabrook, 16 Neb. 217; Gould v. Loughran, 19 Neb. 394; McCormick v. Paddock, 20 Neb. 489; Deseret Nat. Bank v. Nuckolls, 30 Neb. 768; Menage v. Jones, 40 Minn. 254; West Duluth Land Co. v. Kurtz, 45 Minn. 380.)

Notice to the heirs is not of the essence of the court's jurisdiction. (Grignon v. Astor, 2 How. [U. S.], 319; Seward v. Didier, 16 Neb. 62; Smith v. Race, 27 Ill. 287; Mason v. Wait, 4 Scam. [Ill.], 127; Mohr v. Porter, 51 Wis. 487; Trumble v. Williams, 18 Neb. 154; Miller v. Sullivan, 4 Dillon [U. S. C. C.], 343; Good v. Norley, 28 Iowa 188; Seward v. Didier, 16 Neb. 58; Gager v. Henry, 5 Saw. [U. S. C. C.], 237.)

In the following cases it has been held that the court acquires jurisdiction to order the sale of a ward's property upon the filing of a proper...