Green v. Holzer

Wood, J., (¡after stating the facts). It is unnecessary to set out land discuss in detail the evidence. The findings of fact of the ichancellor 'are in .accord with the preponderance of the evidence. The appellants contend that the court had no jurisdiction to order a sale of tbe homestead of the minors in a suit for partition, 'and that for that reason the sale wias not voidable but was ¡absolutely void, and therefore one that could not be ratified by any subsequent conduct of the minors after becoming of age. (1) The contention of the appellants is unsound. The court locked to the 'allegations of the complaint or petition in partition to determine its jurisdiction. In that (complaint it was not ¡revealed that the land sought to be partitioned was the homestead of minors. The chancery court had jurisdiction over the subject-matter, that is, the partition of the lands, .and while it might have been erroneous for the chancery court to have ordered a sale of tbe land that constituted tbe homestead of minors, this error was one that did not render the decree absolutely void, ¡and the .error could have been corrected by ¡appeal in tbe same case. (2) The ¡court ¡having jurisdiction of the subject-matter, correctly held that Frank and Mamie Becker, the minors of William Becker, whose homestead right was sold under the decree for partition, having reached their majority, and ¡having executed and tendered a deed to the appellants to the land constituting the homestead, could not thereafter 'challenge 'the sale of the land to appellant®, and also 'correctly held that the appellants, by ■the consent of the purchaser, having ‘been substituted in his stead land 'executed a bond for the payment of the punchase money, were in no position to challenge the validity of 'the sale. (3) Learned counsel for appellants, in their brief, suggest ¡that the Donnelly heirs, who were minors and also heirs of William Becker and interested in his estate, had not ratified the sole, and that the sale should be cancelled because no bond had been executed by the ■guardian of the Donnelly minors for the protection of their shares as required under the provisions of section 5800 of Kirby’s Digest. But the appellants do not abstract .any pleadings, showing ¡that this was 'alleged by the appellants in their complaint as one of the grounds why the judgment should be vacated, and there is no testimony abstracted which 'shows that this was made an issue in the court below. It must be presumed, in the absence of anything appearing to the contrary in this record, that the court made 'all proper orders for the protection of the minors according to law in ordering the sale of the land for partition, and in the absence of proof to the contrary, it must be presumed that the guardians' of the Donnelly ■minors had executed the bond that they were required to give as such guardians before receiving any proceeds that might be coming to their wards as heirs out of the estate of William Beaker, deceased. Moreover, the appellants had been mlade parties to the suit for partition and if the provisions of section 5800 of Kirby’s Digest in regard to the execution of a bond by the guardians of the Donnelly minors ¡had not been complied with doubtless upon ¡the suggestion of this fact to the chancery court it would have made ¡all proper orders in the premises before exacting payment of the purchase money by the appellants. If is too late to raise this issue here for the first time, even if it had been sound when properly presented in the court below, which we do not decide. Appellants allege as one of the grounds for vacating the decree that at the time the decree was rendered the estate of William Becker .was in process of administration by the probate court, and that more than $500 of claims had 'been probated and allowed, but not paid, and that he had no property with which to pay these claims except the lots that the chancery court had ordered sold in partition; that these facts were known to the parties to the partition suit and were knowingly concealed from the court for the-purpose of perpetrating -a fraud on the Court and the appellants; that the appellants at the time they signed the bond of the purchaser at the sale for the purchase money of the lot did not know of the fraud and they still did not know of such fraud at the time they were made parties to the partition suit and were, by order of the court, subrogated to the rights of Otto Holzer, the purchaser. (4) The court, as already stated, had jurisdiction to partition the land in controversy, and appellants voluntarily were made parties to the suit in partition before the commissioner in said suit was directed to collect the purchase money for which the land wlas sold, and for the payment of which by the purchaser, appellants had executed their bond. The matter of the estate of William Becker being in process of administration and the probation of claims against ithe estate being iall prior to the filing of the suit for partition land the decree of the court ordering the sale of 'the land for partition, these were matters pending before the probate court -and of public record before appellees were made parties to the suit for partition. They could -and should have been set up in that suit by the appellants ¡and if the court had proceeded to distribute the proceeds of the siale in the face of allegations and proof that the estate was indebted and in process of administration 'and 'that these lands were the only assets of the estate out of which the debts could be paid, ¡and had nevertheless .entered .a decree for final distribution of the proceed®., this would have been an error which appellants could have corrected on appeal. Being parties 'to the partition proceedings before the final judgment was rendered confirming ¡the sale and disposing of the proceeds of that sale, they should have presented these matters in that case and corrected ¡any error of the court by direct attack on that judgment on appeal. Their suit here is 'but a collateral ¡attack on the judgment of the chancery court having jurisdiction over the ¡subject-matter .and the parties, and that judgment is conclusive of the matters in regard to the administration pending in the probate court which ¡appellants now seek to have considered as a ¡ground for vacating .the judgment. Moreover appellants', by voluntarily executing the bond for payment of the purchase money by the purchaser and ■by having themselves made parties .and .substituted in his stead; <and, as the .abstract by the appellees shows, having procured a deed from the purchaser and taken possession of the property and held the same out as their own, they are not in a position in this collateral proceeding to repudiate the sale which they had by their voluntary conduct .ratified. Furthermore, the chancery court has directed the proceeds of the purchase money to be paid by the 'appellants .and, when collected 'by the commissioner, to be held to ¡await the further orders of the chancery court. The ¡chancery court ¡thus has it in its power to prevent any irreparable injury ito the appellants before the distribution of the money paid by them has been made. The court was correct in dismissing the .appellants’ complaint for want of equity, and its decree is in all things affirmed.