Mohr v. Tulip

Cole, J. It is apparent that many of tbe errors or irregularities relied on in this case to annul the sale made by tbe guardian are cured by sec. 62, ch. 94, R. S. That section declares that tbe sale shall not be avoided for mere irregularities, providing certain facts exist or appear. This curative provision has already received some consideration in Reynolds v. Schmidt, 20 Wis., 374; Blackman v. Baumann, 22 id., 611; and Chase v. Boss, 36 id., 267. It applies to tbe present case, and does away with some of tbe objections taken to tbe regularity of tbe proceedings in tbe county court, so far as regards the validity of tbe sale in this collateral inquiry. It is insisted on tbe part of tbe plaintiff, that tbe petition for a license to sell is fatally defective, and does not contain t]ie essential facts necessary to be stated in order to authorize tbe county court to grant a license to sell real estate. The petition may be defective in some particulars, but it is sufficient in substance to call into exercise tbe power of tbe court. If tbe proper notice bad been given for persons interested in the estate to appear and show, cause why a license should not be granted, the sale could not be avoided on tbe ground that the petition was informal, or not as full in some of its statements as it should have been. But the fatal defect in tbe proceedings is, that tbe required notice was not given of tbe bearing of tbe application for a license. Such a notice was in tbe nature of process to bring tbe proper parties before tbe court, and was essential to confer jurisdiction over tbe proceedings upon tbe county court. This is plainly tbe result of tbe decisions of this court, so far — 77 — as it lias bad occasion to consider the effect of not giving such notice in these proceedings, or to pass upon analogous questions relating to the jurisdiction -of probate courts in these matters. (See Sitzman v. Pacquette, 13 Wis., 292; Gibbs v. Shaw, 17 id., 197; Blodgett v. Hitt, 29 id., 176; McCrubb v. Bray, 36 id., 333; Reynolds v. Schmidt; Chase v. Ross, supra.) The settled doctrine of this court is, that the required notice for parties interested in the estate to appear must be given; that this is a matter going to the jurisdiction of the court. In respect to the question before us, the statute provides, in substance, that in case of the insufficiency of the personal estate in the hands of the guardian of an insane person to pay the just debts of the ward, the guardian may be licensed by the proper county court to sell the lunatic’s real estate for that purpose, “ in like manner and upon the same terms and conditions as are prescribed in ” the chapter in case of a sale by an executor or administrator, excepting in the particulars in which a different provision is made. (Sec. 48, ch. 94.) This evidently contemplates the giving of a like notice where an application for a sale is made by the guardian of a lunatic, as in case of a sale made by an executor or administrator. The words “ in like manner and upon the same terms and conditions ” are broad enough to cover the whole proceedings. (See also sec. 52.) In case of an application by an executor or administrator for license to sell real estate, the county court is required (sec. 3) to make an order directing all persons interested in the estate to appear before it at a time and place therein specified, not less than six and not more than ten weeks from the time of making such order, to show cause why a license should not be granted. By sec. 4 it is provided that every such order to show cause shall be published at least four successive weeks ” in such newspaper as the court shall order, and a copy thereof shall be served personally on all persons interested in the estate and residing in the county in — 78 — which such application, is made, at least fourteen days before the day therein appointed for showing cause, provided,” etc. The order for the hearing of the petition bears date November 21, 1870, and, as recorded, directs a hearing on the 2d of January of the same year. The first publication of the notice in the newspaper designated in the order was on the 7th day of December, 1870, and gave the right year for the hearing of the application. But it will be observed from the dates that the notice was published two days less than four weeks, if both the day of the first publication and the day of hearing are included. The statute is clear, positive and mandatory, that the order “ shall be published at least fou/v successive weeks ” before the day appointed for showing cause, which confessedly was not done in this case. The question then arises, Was not this failure to give the statutory notice a fatal defect in the proceeding? Upon the rule laid down in the above decisions, the question must receive an affirmative answer. There is no possible escape from this conclusion, unless the position of the learned counsel for the defendant is correct, namely, that the court had previously acquired jurisdiction of the res, under a sufficient petition, and the failure to give the notice did not oust that jurisdiction. But obviously this view cannot be adopted without departing from the rule laid down by this court on the subject. For it has been held, whenever the question has arisen, that, to confer jurisdiction over the proceeding, notice according to the requirements of the statute must be given to the persons interested in the estate, otherwise the sale cannot be sustained even in a collateral action. Nor is there anything in conflict with these views in the case of Reynolds v. Schmidt. There the sole objection to the validity of the sale was founded upon the- omission of the administrator to state in his petition the valae of the personal property which came to his hands; and it was insisted that this was a fact which went to the jurisdiction of the court. But the position was overruled. — 79 — The record showed that proper notice of the hearing of the application was given, and this court held that, the probate court having acquired jurisdiction of the proceeding, the sale under the statute must be sustained. That case, however, furnishes no authority for sustaining this sale, and is in harmony with the other cases. Upon the whole case there would seem to be no middle ground between holding that the statutory notice must be given or the sale will be invalid, and holding that in a proceeding by the guardian of a lunatic to sell the real estate of his ward, notice of the hearing of the application may be entirely dispensed with. The latter view would certainly be in conflict with the doctrine established by this court, and cannot, therefore, be sanctioned. It results from this that the sale made by the guardian was invalid on account of the failure to give the necessary notice of the hearing of the application. After the commission of lunacy had been superseded, the plaintiff with the aid of counsel examined the guardian’s accounts, settled with the guardian, and received and retains the balance found due him on such settlement. The accounts showed the sale of the land in dispute to the defendant, and payment therefor to the guardian. It is insisted by the counsel for the defendant, that, by the receipt of the balance found due on settlement with the guardian, the plaintiff is estopped from claiming the land. lie ought not, it is said, to retain a part of the proceeds of the sale, and at the same time seek to avoid the sale. The question therefore arises, whether the plaintiff, by the receipt, on the settlement of the guardian’s accounts, of a part of the consideration for which the land was sold, is estopped from showing that the sale was void. Under the circumstances, we are unable to see upon what ground he can be said to be estopped from making that claim. lie may well be estopped from opening that settlement or impeaching it in any way. But the money in his guardian’s hands certainly belonged to him. "When the plaintiff received — 80 — and retained it, be but received what was his own. Fiad the funds remained in the possession of the county court, there would surely be no ground for saying that the plaintiff -was estopped by the settlement with his guardian from attaching the validity of the sale. The only effect which should, under the circumstances, be given to the act of settlement and receipt of the money, is to conclude the plaintiff as to those transactions and accounts embraced in the settlement. As to those matters, it may be said he has ratified and confirmed the action of his guardian, with full knowledge of the facts, after he became capable of managing his own affairs. But in view of another consideration now to be noticed, we are unable to hold that the plaintiff is estopped from questioning the validity of the sale; which is this: The defendant has set up in his answer, and gave his own testimony on the trial to support the averment, that he purchased the land at the guardian’s sale in good faith, for a valuable consideration, without notice of any irregularities or defects in the proceedings, supposing he was getting a perfect title to the premises. He claims that he has paid considerable sums of money for taxes, and has made large and valuable improvements on the premises. Under the doctrine laid down in Blodgett v. Hitt, the plaintiff cannot recover the land without refunding the purchase money with interest, and all sums paid for taxes, and paying for all permanent improvements. Of course the plaintiff is to be allowed for the use and occupation of the premises, excluding the value of the use of the improvements. The principles upon which the accounts between the parties should be stated are laid down in the Blodgett case, and require no further elaboration. But, as the plaintiff is required to pay all moneys, with interest, which the defendant has expended for and upon the premises, there is no ground for the application of the doctrine of estoppel. But it is further insisted on the part of the defendant, that he has the legal title derived through the foreclosure proceed — 81 — ings of tbe Jefferson mortgage. It appears that the plaintiff was declared a lunatic by the county court in February, 1854, and one G-aston was appointed his guardian. In March of. the same year, Gaston resigned his trust as guardian, and no other guardian was appointed until September, 1869. In 1856, the plaintiff and wife gave a note, and also a mortgage upon all his lands, to one Jefferson, for $555; and in 1859 executed another mortgage to the same party for $300, to secure the payment of a promissory note of that amount. Subsequently the latter mortgage was foreclosed, the summons in the action being served on the plaintiff and wife in January, 1860. Jefferson bid in the property at the foreclosure sale, and after-wards took a sheriff’s deed, which was recorded in January, 1863. In August, 1869, Jefferson commenced an action to recover possession of the property; but the action was finally settled and discontinued, the guardian of the plaintiff having agreed to pay Jefferson the amount which the latter claimed to be due him, out of the proceeds of the sales of the real estate which he proceeded to make under the license obtained from the county court. This arrangement was carried out, and Jefferson, for the purpose of assuring to the purchasers at the guardian’s sale a more perfect title, executed quitclaim deeds of the several parcels of land purchased by them respectively at the sale. At the same time he executed to the plaintiff a quitclaim deed of all the real estate sold at such sale. And it is claimed that, by virtue of the judgment of foreclosure and deed to Jefferson, and the subsequent quitclaim deed from Jefferson, the legal title of the land in controversy became vested in the defendant. To the point that the foreclosure proceeding was valid and conclusive upon the lunatic, the counsel for the defendant has referred us to Sternberg v. Schoolcraft, 2 Barb. S. C., 153, and Crippen v. Culver, 13 id., 424. In the former case the action was upon a judgment recovered upon a promissory note given by a lunatic or an habitual drunkard. The simple question before the court and decided — 82 — was, whether a judgment recovered in a court of law against a person who has been found a lunatic or an habitual drunkard, and whose person and property have been placed in the custody of a committee, was void for that reason; and the court held it was not. Crippen v. Culver was an equitable action brought by the committee of a lunatic to recover the value of property levied upon arid sold under a judgment and execution obtained by regular process of law against the lunatic alone, after the appointment of a committee, on a just demand, and to which it was not claimed or proved that there was any defense. The relief asked was denied., Each of these cases proceeds upon very narrow grounds, and cannot be said to control the one before us, which is quite dissimilar in its facts. (See Molton v. Camroux, 2 Exch., 487; S. C. in 4 Exch., 17; Beavan v. McDonnell, 9 id., 309; Young v. Stevens, 48 N. H., 133.) Here the foreclosure proceeding was upon a mortgage executed by the lunatic after inquisition found. Whether the mortgagee had, at the time, any knowledge of his unsoundness of mind does not appear. But the mortgages were voidable, if not void. 2 Kent, 450; L'Amoureux v. Crosby, 2 Paige, 422. The defendant is a mere voluntary grantee of Jefferson, the purchaser at the foreclosure sale. It is fair to assume that Jefferson did not execute the quitclaim deed until he was paid in full by the guardian under the arrangement made. Manifestly the defendant acquired no equities under that conveyance. He stands in the same position as his grantor, whose title might be avoided by the plaintiff upon his restoration to sound mind. (See Gibson v. Soper, 6 Gray, 279; Elliot v. Ince, 7 De G., M. & G., 475; Manning v. Gill, L. R., 13 Eq., 485.) By the settlement, the plaintiff may well be held to have ratified and confirmed the act of his guardian in discharging his voidable contracts made with Jefferson. But it is impossible to hold upon the facts that the quitclaim deed from Jefferson to the defendant conveyed the legal title as against the plaintiff. It is far more consistent with all — 83 — legal principles to say that the plaintiff liimself took whatever title Jefferson had, hy the quitclaim which was executed to him. It results from these views, that the judgment of the circuit court must he reversed, and a new trial ordered. By the Court. — It is so ordered. Ryan, C. J., took no part in this decision.