Stewart v. Bailey

• Decision Date: 28 October 1873
• Citation: 28 Mich. 251
• Court: Michigan Supreme Court
• Parties: William Stewart and others v. Charles A. Bailey and another

28 Mich. 251

William Stewart and others v. Charles A. Bailey and another

Supreme Court of Michigan

October 28, 1873

Submitted on Briefs October 22, 1873

Error to St. Clair Circuit.

Ejectment. Defendants bring error. Affirmed.

Judgment affirmed, with costs.

B. C Farrand and D. C. Holbrook, for plaintiffs in error.

A. E Chadwick, for defendants in error.

OPINION

Graves J.

This was an ejectment by the defendant in error Charles A. Bailey, and his brother, George Bailey Ashley, who, at his birth, was called George Bailey, as sole heirs of their father, George H. Bailey, who died in 1854. The suit was brought for the north twenty-four feet of lot 17, in block 57, on White's plat of part of the city of Port Huron, and was tried by the court, sitting without a jury.

A special finding was made, and thereupon judgment was given in favor of the plaintiffs in error as against George B. Ashley, but against them and in favor of Charles A. Bailey for an undivided half of the premises claimed, and they then sued out this writ of error.

It was found that the plaintiffs in error were in possession, that Stewart claimed to be owner as grantee of one Alvah Sweetser, and was in fact a purchaser in good faith from Sweetser, who had bought the premises at a sale made on the 12th of June, 1854, by one Martin S. Gillett, as guardian of the plaintiffs below.

The circuit judge stated the proceedings connected with the guardian sale in his finding, and it appeared that they were taken and conducted under chapter 164, Compiled Laws; that no order was made by the probate court for the giving of a sale bond by the guardian, that no such bond was given, and that the only proceeding in the nature of an order to confirm the sale consisted of an endorsement by the probate judge on the report of the sale by the guardian, in these terms: "Filed, approved, and confirmed, and deed ordered to be executed to the purchaser. John McNeil, Judge of Probate." The circuit court held that the guardian proceedings were defective for want of a sale bond, and also for want of a proper order of confirmation of the sale, and that these defects were open and available to the heir in his suit for the land. These rulings present the only questions in the case, and that relating to the bond being the main, if not the only substantial one, on this record, may be first considered.

The position of the plaintiffs in error is that, as the probate court does not seem to have expressly ordered the giving of a sale bond, but appears to have allowed the proceedings to go on without one, that therefore the provisions of § 4622 of the chapter serve to afford protection to Stewart, a bona fide purchaser under the guardian's sale, against ejectment by the heir. The section referred to is as follows:

"In case of an action relating to any estate sold by a guardian under the provisions of this chapter, in which the ward, or any person claiming under him, shall contest the validity of the sale, the same shall not be avoided on account of any irregularity in the proceedings, provided it shall appear:

First. That the guardian was licensed to make the sale by a probate court of competent jurisdiction;

Second. That he gave a bond which was approved by the judge of probate, in case any bond was required by the court upon granting the license;

Third. That he took the oath prescribed in this chapter;

Fourth. That he gave notice of the time and place of sale as prescribed by law; and

Fifth. That the premises were sold accordingly by public auction, and are held by one who purchased them in good faith."

It is certainly true that the...