Bickel v. Erskine

Rothrock, J. There is but one assignment of error, and that is, that “the court erred in its finding or conclusion of law, that no failure or defect in plaintiff’s title is established, nor any inability on his part to perform said contract of sale.” In the argument of the case for appellant the first question made is, that the sale by the administratrix was void for the reason that there was no defense made for the infant by a guardian. i jurisdioüífant’I'reai01 estate. It will be observed by an examination of the findings of fact by the court below, that notice was properly served upon ^e infant, and upon her guardian; that the guardian aPPeare<l hi person, both in his own behalf and in behalf of his ward; that having heard the evidence in support of the application, and no one appearing to resist the same, and it appearing that it was necessary to sell said real estate to pay the debts, the order of sale was [220] accordingly made. Here was jurisdiction, of. the subject matter, and of the person of the infant, and the jurisdiction was properly invoked. If this proceeding be regarded as adversary, and not in rem, the jurisdiction of the person, so far as proper service and appearance would give jurisdiction, was complete. Appellants, however, insist the making of a defense was a jurisdictional pre-requisite to the validity of the order of sale, and they cite Sec. 2778 of the Rev. of 1860, under which this sale was made, which provides, that “ No judgment can be rendered against an infant until after a defense by a guardian.” And section 2893 provides, that “ The guardian of an infant * * * must, deny in the answ'er all the material allegations of the petition prejudicial to such defendant.” Without determining whether an observance of these provisions of the statute is necessarily jurisdictional in an ordinary action, we are of the.opinionthat, under this special proceeding, the statute authorizing which provides for no definite or prescribed form of pleadings, and in view of- what appears on the face of the record in the case, that the county court had j urisdiction of the person and the subject matter, and was author, ized to make the order of sale. It having been found by the court from the evidence before it, that it was necessary to sell the real estate to pay the debts, what benefit would it have been to the infant if the guardian had made an active defense? It will be observed that no default was taken against the infant, but on the contrary the application was tried, and determined in the same way that it would have been if there had been an answer by guardian denying the allegations of the application for the sale. In our view there was a substantial compliance with the statute, if we concede that to be necessary, and as the matter was properly investigated, regard should be had rather to the substance than the form. The recital that “no one appeared to resist the application,” taken in connection with the recital as to the hearing of the evidence, and the investigation of the case, we take to be an assertion that no counter evidence was introduced, and not that the hearing was had as upon a default. [221] 2. judgment : purcbase^by guardian. II. It is next insisted that the purchase of the real estate in'question by Henry Schleffel, the guardian, was unlawful, and that he by his purchase became trustee for his wai’d and held the land in that capacity. Schleffel paid the appraised value of the real estate in question, and there is no showing made that there was any actual fraud on his part. Whatever the rights of the infant in the real estate may have been, in view of the purchase made- by her guardian, we are of opinion that those rights are determined and extinguished by the decree of the Circuit Court of Scott county made on the 2d day of December, 1873. Appellants insist that this decree does not conclude the said Theresa, that it is not final and unimpeachable, but that it is subject to be vacated or modified at any time within one year after the minor defendant shall arrive at full age, and they cite subdivision four of Sec. 3154 of the Code, which provides for the vacation or modification of a judgment or order “Eor fraud practiced by the successful party in obtaining the same.” It will be observed by reference to the special findings of the court below, that Ypgler at the time of his purchase had no actual notice of any irregularities in the sale. He supposed he was invested with an indefeasible title, and whatever relation, if any, he may have sustained to the infant, Theresa, was thrust upon him without his actual knowledge. Holding this relation to the said infant, he filed his petition against her, in which he makes a full statement of the irregularities attending the sale, and of the purchase by the guardian, and asks that his title be quieted. The record shows that an answer was filed by a guardian ad litem,, denying the allegations of the petition, and, as shown by the record, a full hearing was had, and decree made quieting title in him. It is conceded that in order that the infant defendant may avail herself of the statute above cited, it must be for some actual fraud practiced by Yogler. We are' unable to concur with counsel for appellants that any such fraud has been shown. It is insisted that the property was sold at the administratrix’s sale at much less than its value, and that this fact is [222] apparent for the reason that Schleffel made a re-sale at a large advance. There is a direct issue made in the petition and answer, in the suit to quiet title, as to the consideration paid by Schleffel. This issue was found in favor of Vogler, and in the absence of any showing of fraud we must presume that the decree was properly rendered. Judgments and decrees against infants, as well as adults, are presumed to be valid, and titles founded thereon must be sustained, unless error or fraud be affirmatively shown. 3 __ — . fantsffraud. Sec. 3154 of the Code provides that a judgment may be vacated or modified: “For error in a judgment shown by a minor within twelve months after arriving at full age,” and it is insisted by appellants that there can be no specific performance decreed against them inasmuch as their title is liable to be impeached, from the fact that there is error in the decree quieting title against the infant. The weight of authority seems to be that an infant defendant is as much-bound by a decree in equity as a person of full age, and he will not be permitted to dispute it unless upon the same grounds that an adult might have disputed it, such as fraud, collusion or error. Freeman on Judgments, Sec. 513, and authorities there cited. 4 _____of vacation of. Whatever may have been the practice heretofore as to giving infants a day to show cause against the operation of a judgment, we are of opinion that under our practice the right infant defendants to attack judgments and decrees against them is fixed and determined by the statute. What, then, is “error in a judgment ” shown by a minor within twelve months after arriving at full age? In our jndgment, it is not error in fact, but error in the ordinary legal sense of the term, that is error in law, apparent on the record, and such as would be ground for reversal on writ of error at common law, or on appeal under the Code. It is not allowable for the infant to come in as a matter of course with a new defense, or new evidence, and try the case over again. It will be borne in mind that the subdivision under consideration gives relief for “error in a judgment.” It is not for fraud practiced by the successful party. [223] This view of what is intended by the term, “error in a judgment,” is supported by Sec. 3157 of the Code, which provides that the proceedings to vacate a judgment “shall be by petition **•-*■* setting forth the facts or errors constituting a cause to vacate it.” From this it would seem that by errors is intended such as are shown by the record. Applying this construction of the statute to this case, what error is made to appear in the record of the proceedings to quiet title in Yogler? Error is not to be presumed, but the contrary. The evidence on which the decree quieting title was rendered is not before us, and must be presumed to have been sufficient. We are the more ready to adopt this construction of the statute, for the reason that the whole policy of our law is opposed to hindering or impeding the alienation of property; and, as has been well said, “infants have suffered far more than they have been benefited by many of the safeguards carefully devised for their protection.” • This cause has been ably and exhaustively presented in the printed arguments on 'both sides, and it is perhaps proper to say that there are other questions discussed by counsel which, although in our view not necessary to a disposition of the case, we would take pleasure in reviewing; but we cannot properly do so without unduly extending this opinion. The judgment and decree of the District Court will be Affirmed.