Myers v. McGavock

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

39 Neb. 843

58 N.W. 522

MYERS ET AL.

v.MCGAVOCK ET AL.

Supreme Court of Nebraska.

March 22, 1894.

Syllabus by the Court.

1. A sale and conveyance of the real estate of certain minors, made by their guardian in pursuance of a license of a district court of this state granted therefor, examined, and held: That such sale and conveyance would not be held void in this, a collateral proceeding, because (a) it appears that, at the time such guardian made application to the district court for a license to sell the real estate of his wards, they resided in the state of Illinois, and the guardian held his appointment from a court in the state of Iowa; it appearing that, at the time said guardian was appointed by the Iowa court, his wards resided in that state. Nor because (b) said wards took up their residence in the state of Illinois after the appointment of their guardian in the state of Iowa, as their change of domicile did not deprive said guardian of control over them or their property, nor did the residence of said wards in the state of Illinois at the time the guardian made the application to sell preclude the jurisdiction of the district court. Nor because (c) the authenticated copy of the letters of guardianship filed in said district court did not contain the certificate of a judge or presiding magistrate of the Iowa court that the certificate and attestation of the clerk of the Iowa court attached to said copy of letters of guardianship was in due form of law, as the question whether the certified copy of the guardian's appointment was the best evidence, or competent evidence, was one for the district court hearing the application for license; and it was for that court to say whether it was satisfied with the evidence offered to prove that the guardian was the duly appointed, qualified, and acting guardian of the heirs whose real estate he had made application to sell; and the finding and judgment of a court cannot be successfully assailed as void, in a collateral proceeding, because such court made such finding or rendered such judgment on incompetent evidence. Menage v. Jones, 41 N. W. 972, 40 Minn. 245, followed. Nor because (d) the petition for license to sell the real estate was not verified by the guardian, as this did not affect the jurisdiction of the district court, nor render its proceedings void. Nor because (e) the verification of the petition for license was made by the guardian's attorney who conducted the proceedings. Ellsworth v. Hall, 12 N. W. 512, 48 Mich. 407, followed. Nor because (f) the bond given by the guardian to the judge of the district court was not formally approved by him. Emery v. Vroman, 19 Wis. 724;Pursley v. Hayes, 22 Iowa, 11, followed. Nor because (g) the record of the proceedings on which the guardian's sale was based contained no copy of a notice of the sale posted in three of the most public places in the county in which said sale was held, as the district court which licensed the sale, in its order confirming the same, made a finding that the proceedings of the guardian in making the sale had been in all respects regular, and in conformity to law, and this court would presume that the district court had before it sufficient evidence on which to base such finding. Nor because (h) the sale was not made by the guardian personally, but through his attorney who conducted the proceedings in court. Nor because (i) the property sold and conveyed by the guardian was described as the “N. E. two-thirds (2/3) of lot eight (8) in block two hundred and three (203), in the city of Omaha, being all that portion of said lot not belonging to the Union Pacific Railway Company,” as this description was sufficient to enable the property to be identified, and therefore not void for uncertainty.

2. In an ejectment suit, where the defendant claims title by virtue of a guardian's sale and conveyance, the fact of the approval of the bond by the judge of the court granting the guardian a license to sell, like any other fact, may be proved by the best evidence attainable.

3. The authority of a guardian to sell the real estate of his wards for any purpose must be found in the statute, and our laws confer no authority on a natural guardian, as such, to dispose of the real estate of his wards; and no district court has jurisdiction to authorize a natural guardian, as such, to sell the real estate of his wards. The only guardian a district court has jurisdiction to license to sell the property of his wards is a guardian appointed and commissioned by a court having authority to appoint guardians; and it must appear that such guardian had accepted such appointment, had qualified, and was acting.

4. A natural, guardian may become the legal guardian of his wards, but, in order to become such, he must be appointed by the proper authority, accept such appointment, and qualify as such legal guardian.

5. An application by a guardian for license to sell the real estate of his wards for their maintenance and education is a proceeding in rem,--one instituted by their guardian for their benefit. It is, in effect, the application of the wards. It is not a proceeding adversary to them, and notice to them of such application is not essential to the jurisdiction of the district court to grant the license. Mohr v. Manierre, 101 U. S. 417;Scarf v. Aldrich (Cal.) 32 Pac. 324;Mohr v. Porter, 8 N. W. 364, 51 Wis. 487, followed.

6. The statutes of this state require courts having authority to appoint guardians to see to it that the persons so appointed are capable and honest; that they give and keep good the bonds required by the statute for the faithful execution of their trust, and render to the ocurt, at frequent intervals, accounts of their guardianship.

7. The law has conferred on the district judges, in the first instance, the exclusive power to say whether the facts exist which justify the sale of a ward's property by his guardian; to say whether, in the judgment of the court, the sale asked to be authorized is for the best interests of the ward; and this authority should not be exercised by the district judges as a matter of course, but only after investigation and inquiry into all the facts, and not then unless the judge is convinced that such sale is a necessity, or is for the best interests of the ward.

8. It seems that notice to the wards of an application made by their guardian for the sale of their real estate to pay debts is essential to the jurisdiction of the district court to license such sale, and that a guardian's sale and conveyance of the real estate of his wards for such purpose without such notice are void. Mickel v. Hicks, 19 Kan. 578.

9. The provisions of section 109, c. 23, Comp. St. 1893, are not applicable to a proceeding instituted by a guardian of minors for a license to sell their real estate for their education and maintenance. The meaning of said section is that when any person other than the minors--such as an insane person, an idiot, a spendthrift, or a drunkard -- shall be under guardianship, and an application shall be made by such person's conservator or guardian for license to sell his real estate, then the heirs presumptive (that is, all such persons as would inherit such person's property, should he die immediately) shall be deemed interested in the estate, and notice of the application shall be served upon them.

10. Where an application was made by a guardian of minors to sell their real estate, and the mother and an adult brother of such minors entered their appearance in said proceeding, and consented that the license to make such sale might be granted as prayed, held, that the interest of said widow and adult son in said real estate was not therefore divested by the sale and conveyance of the real estate made by said guardian in virtue of said proceeding.

11. But where such proceedings purported to dispose of the interest of the adult parties, and the purchaser entered into exclusive possession, such proceedings and entry operated as an ouster of such adults; and such possession, being adverse, and continuing for the statutory period, divested the adults' title.

12. A conveyance of real estate made to a railway corporation chartered by an act of congress, which, under our constitution, is incompetent to take title, is not void, but only voidable. The title of such corporation to such real estate is valid against everyone but the state, and can be divested only in proceedings brought by the state for that purpose. Carlow v. C. Aultman & Co., 44 N. W. 873, 28 Neb. 672, followed.

13. Where a corporation chartered by an act of congress, and incompetent, by reason of our constitution, to acquire title to real estate in this state, has been in open, notorious, exclusive, and adverse possession of real estate under claim of title for 10 years, such corporation has a valid title to such real estate, as against all persons except the state of Nebraska.

14. Where the statute of limitations has begun to run against the owners of real estate in the adverse possession of another, a conveyance and delivery of possession of such real estate, by such adverse occupier thereof, to one incompetent to take title to such real estate, will not arrest the running of the statute of limitations against such owners.

15. The rule that the legislature, by adopting the statute of another state, thereby adopts the construction placed on said statute by the highest court of that state, does not apply when such construction was not placed on said statute until after its adoption.

16. The provisions of chapter 16, Comp. St. 1893, in so far as they are applicable, apply to all railroad corporations operating roads in this state, whether domestic or foreign corporations.

17. In 1871 the Union Pacific Railway Company, a corporation chartered by act of congress, was operating its railroad in this state, and acquired the right to occupy, for depot purposes, certain real estate, the...