Seward v. Didier
| Decision Date | 27 May 1884 |
| Citation | 20 N.W. 12,16 Neb. 58 |
| Parties | JAMES A. SEWARD AND DANIEL BENNETT, PLAINTIFFS IN ERROR, v. HENRY DIDIER, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Richardson county. Tried below before DAVIDSON, J.
REVERSED AND REMANDED.
A Schoenheit and E. W. Thomas, for plaintiffs in error, cited Freeman Void Judicial Sales, § 42. Good v Norley, 28 Iowa 188. Holmes v. Beal, 9 Cush. 223. Vancleave v. Milliken, 13 Ind. 105. Coon v. Fry, 6 Mich. 506. Marvin v. Schilling, 12 Mich. 360. Watts v. Cook, 24 Kansas, 278. Bryan v. Bauder, 23 Kansas, 95. Maxwell v. Campbell, 45 Ind. 360. Worthington v. Dunkin, 41 Ind. 516.
Martin & Gilman, for defendant in error, cited: Freeman Void Sales, §§ 16-19. Pursley v. Hayes, 22 Iowa 11. Good v. Norley, 28 Id., 188. Lyon v. Vanatta, 35 Id., 522. Rankin v. Miller, 43 Id., 21. Miller v. Miller, 10 Tex. 319. Townsend v. Tallant, 33 Cal. 45. Bigelow on Estoppel, 515. 1 Parsons Contracts, 323. Davidson v. Young, 38 Ill. 147.
This is an action of ejectment instituted by Henry Didier against James A. Seward to recover the north half of the south-west quarter of section three, township three north, of range sixteen east. Seward was in possession, claiming title under a warranty deed from Daniel Bennett, and he immediately notified Bennett to defend the action. Bennett on his own application was made a defendant, and the action then proceeded against both Seward and Bennett. On the trial of the case a jury was waived and the court found the issues in favor of Didier, and rendered judgment in his favor for the possession of the premises. Seward derives title through a sale of the land in controversy made by the guardian of Didier in the year 1860, Didier being at that time six or seven years of age. Three questions are presented: 1st. The validity of the guardian's sale; 2d. Ratification of the sale by Didier after coming of age; 3d. Whether the action is barred by the statute of limitations. These questions will be considered in their order.
It appears from the record that in January, 1860, a petition for the appointment of a guardian for Henry Didier was presented to the probate court of Richardson county. This petition recites the necessary facts showing the necessity for the appointment of a guardian for said minor. It was prepared by an attorney and signed in the name of the infant. The defendants contend that being so signed it is void. The record fails to show by whom the attorney was employed, nor is it necessary that it should do so. At common law there were three kinds of guardianship, viz., guardian by nature, guardian by nurture, and guardian in socage. The guardian by nature is the father, and on his death the mother. Guardian by nurture occurs only when the child has no other guardian, and terminates when the infant arrives at the age of fourteen years. Co. Litt., 88b. Willard Eq. 621. Guardian in socage extends both to the lands and person of the infant. The guardian in socage was entitled to the custody of the land and to receive the rents and profits for the benefit of the heirs. Byrne v. Van Hoesen, 5 Johns. 66. Jackson v. De Walts, 7 Johns. 157. Jackson v. Vredenberg, 1 Johns. 159-163.
In Berne v. Van Hoesen, it said the guardian "has an interest in the estate and may lease it; may avow in his own name, and may of course have trespass." The change in the law of descent and the substitution of allodial for socage tenures has materially modified this form of guardianship. The extent to which it exists in this state need not now be determined, as the right to appoint a guardian in cases of this kind is unquestioned. The probate court of Richardson county, before making the appointment, no doubt enquired into the necessity of appointing a guardian and found that the petition, although as a matter of form in the name of the minor, was presented by the proper party. The appointment therefore was valid. But even if the original appointment had been open to attack for want of a proper petition or other formal matter, Henry Didier waived the objection after coming of age by settling with his father as guardian and ratifying his acts as such. The guardian gave a bond in the sum of twelve hundred dollars, which was duly approved. Objection is made that no petition for the sale of the land in controversy was offered in evidence, and it is said that there being no petition the court had no jurisdiction. How far this position is correct, it is unnecessary to determine, because from the fact that a license was issued for the sale of the land in question it will be presumed after the lapse of twenty-two years that the necessary preliminary steps were taken. The law will presume official acts of public officers to have been rightly done unless the circumstances of the case overturn this presumption; and acts done which presuppose the existence of other acts to make them legally operative are presumptive proof of the latter. Bank of the United States v. Dandridge, 25 U.S. 64, 12 Wheat. 64, 6 L.Ed. 552. Coombs v. Lane, 4 Ohio St. 112. Ward v. Barrows, 2 Ohio St. 241. Tecumseh Town Site Case, 3 Neb. 267. This doctrine is peculiarly applicable to a new state, where, from lack of proper conveniences and from the ease with which access may be had to them, papers cannot be, or at least are not, as carefully preserved as in older communities. This consideration with others led to the incorporation into both our constitutions of the clause requiring sales of real estate by executors, administrators, and guardians to be licensed by the judge of the district court. We therefore hold that in the absence of proof to the contrary the issuing of license to sell real estate presupposes the existence of the necessary steps to authorize its issue.
In Grignon's Lessee v. Astor, 43 U.S. 319, 2 HOW 319, 11 L.Ed. 283, it is said: "We all know that even in the old states the records of these and similar proceedings are very imperfectly kept, and that where it consists of separate pieces of paper, they are often mislaid or lost by the carelessness of clerks and their frequent changes; regular entries of the proceedings are not entered on the docket as in adversary cases, nor are the facts set forth in the petition entered at large; and it is no matter of surprise that in so new and remote part of the country as the place where these proceedings were had this state of things should exist."
In Thompson v. Tolmie, 2 Peters 162, it was held that where the court had jurisdiction the purchaser is not bound to look beyond the decree.
In Ballow v. Hudson, 54 Va. 672, 13 Gratt. 672, it is said considerations of public policy require that all questions of succession to property should be authoritatively settled. Courts of probate are therefore organized to pass on such questions when arising under wills, and a judgment by such a court is conclusive while it remains in force, and the succession is governed accordingly. A judgment of this nature is classed among those which in legal nomenclature are called judgments in rem. Until reversed it binds not only the intermediate parties to the proceedings in which it is had, but all other persons and all other courts.
In M'Pherson v. Cunliff, 11 Serge. & Rawle 422, the court held that the decree of an orphans' court for the sale of lands was conclusive; that the proceeding was purely in rem, against the estate of the intestate, and not in personam.
In Lalanne's Heirs v. Moreau, 13 La. 431, it is said that the decree of the court of probate ordering a sale of the property of minors is so purely in rem and against the property that a sale made under it extinguishes all the mortgages...
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