Higginbotham v. Thomas

The opinion of the court was-delivered by Kingman, C. J.: This is an action brought by the defendant in error to recover a lot in Leavenworth. She is the sole heir of Malcolm Clark deceased, and is entitled to recover — 335 — unless her title as such heir has been divested by the sale and conveyance of her alleged guardian, John W. Williams. On the trial the court directed the jury to find for the plaintiff, who is now defendant in error. From the verdict rendered under this instruction, and a judgment in pursuance thereof, the plaintiff in error appeals to this court. The circumstances of the case are such that the judgment of the court will not be affirmed without a critical examination of the grounds on which it rests, and a clear conviction that it is the law. If that conclusion is reached, then no consideration of the hardships of the decision can affect the action of the ■court. It may be proper also to say, that we are not insensible of the importance, as a matter of public policy, •of upholding sales made by guardians and personal representatives whenever it can be done under the law. If such sales .are generally held good, that fact increases the competition at the sales by enlarging the circle of bidders, by inviting the attention of a class who buy for use and are generally willing to pay a fair price; while if such sales are of doubtful validity, only speculative and chancing men are ready to invest at prices that justify the risk. Therefore it is for the interest of those whose estates have to be disposed of in this manner, that the public generally should have confidence in the validity of the titles acquired. The first objection to the title of plaintiff in error is, that there is no valid appointment of John W. Williams in this state. The evidence shows the appointment of Williams as guardian of the person and estate of Alice A. Clark by the probate court of Platte county, in the state of Missouri, on the 1st of November 1858, and a bond filed in said court on the 4th of the same month, and an additional bond approved May 2d 1859. Other proceedings of the probate court of Platte county were in evidence, which it is not necessary to indicate, but showing that Williams continued to act as guardian there until the 5th of January 1866, when he was removed, and Alfred W. Hughes appointed in his stead. On the 5th of August 1859 Williams filed in the probate court — 336 — of Leavenworth county an affidavit that he was the guardian of Alice A. Clark; that she was between eight and nine years of age, and resided with him in Platte county, Missouri; that-nothing had come into his hands as such guardian, and consequently he had filed no inventory of the estate of his ward in Missouri or elsewhere. On the 8th of August 1859 Williams filed his oath of office as guardian, and on the 5th of October 1859 an inventory of the estate of Alice A. Clark, which consisted largely of lots in the city of Leavenworth. On the 18th of May 1860 he made a settlement as guardian in the probate court of Leavenworth county, and on the 4th of March 1861 he procured an order of sale for such lots as in his opinion it would be for the interest of the ward to sell. He was authorized to sell at private sale “ to the amount of $3,000 or $4,000.” On the 6th of March he reported the sale of the lot in controversy, which report was approved, and it was ordered that the guardian file a bond conditioned as required by law, and make a deed for the lot. No bond was given. On the 23d of July 1862 the guardian filed a petition for the sale of real estate, and the court authorized him to sell at private sale enough of the property to realize the sum of twenty-five hundred dollars, requiring him before selling to execute a bond in the penal sum of five thousand dollars, with security to be approved by the court. On the same day the guardian reported the sale of certain lots including the lot in controversy, whereupon the court approved the sale and ordered a deed to be made, and a deed was made accordingly for this lot—the sale being made to the same parties that were reported purchasers at a previous sale of the same lot. On the 29th of December 1869 the following order was made in the probate court of Leavenworth county: State of Kansas, Leavenworth County, ss.—In the Probate Court sitting in and for said county—October Term, Wednesday, December 29, 1869. In the matter of John W. Williams, Guardian of the Person and Estate of Alice A. Clark, a minor. It appearing to the court that on the 5th of August 1859, — 337 — at a term of this court then in session, the following order and judgment was made by said court, and drawn up and filed Avith the papers herein, but by an oversight was not copied in the journals of this court, and that the same should be entered in the journals of this court, to take effect as the judgment of this court of said date, in order to make a complete record herein, it is ordered by the court that the same be entered on the journals of this court, and that the same take effect as of said 5th day of August, 1859, which judgment and order is in the words and figures following: “Estate of Alice A. Clark, a minor. Application of-Williams, to be appointed Guardian of the Estate of said minor. “It appearing to the court upon petition of-Williams, that said Alice A. Clark is a minor under the age of fourteen years, non-resident of this Territory, and residing in the county of Platte, and state of Missouri, and that said minor has property, real and personal, Avithin this county; and it further appearing in the said petition that the said-Williams has been duly appointed by the probate judge of the said county of Platte, the guardian of the person and estate of the said minor; and the said Williams having produced to this court a copy of the order of his said appointment, certified and authenticated .according to laAv, it is ordered that the said-Williams he, and is hereby, appointed the guardian of said non-resident minor, for the purpose of selling or otherwise controlling the property of the said minor, under and by virtue of orders which may from time to time he made by this court. And the said - Williams having filed an, authenticated copy of the bonds filed by said guardian, in the state of Missouri, and fully accounted for not having filed an inventory in said foreign state, and the court being satisfied with the sufficiency of the amount of the security, the filing of an additional bond is hereby dispensed with.” This nunc pro tunc order is the only one that shows that Williams Avas authorized in this state to act as guardian. There is a succession of orders in the probate court,.some of which are referred to above, shoAving that lie assumed to act as guardian, and that bis acts therein Avere recognized by the court. Bat before he could assume to act in the matter of disposing of the real estate of a minor, he must actually have had the authority. This position is not questioned. It is asserted that he had the authority, but by oversight the same bad not been formally entered upon the record, and tbat the court had authority to make the record show the fact by the nunc pro tunc order above recited. The principle asserted is a very grave one, and not free from doubt. It is certainly a Avide reach of power, to authorize a probate court, more than ten years after such an order is claimed to have been made, — 338 — to enter an order that shall reach back and cover the actions of the intermediate years, affecting the rights to property, the liability of sureties on a bond, and all the relations of the minor during that period. But great and perilous as is the power thus claimed, it is not necessary in this case to decide upon its existence. It is enough for us to say that if the. power exists it does not in this case grow out of §178, page 294, Gen. Stat., for that section only permits the “immediate successor” of an ex-officer to .comjdeto the records of his predecessor. The record shows that several persons had hold the office of probate- judge of Leavenworth county between the time when this order is claimed to have been made, and the entry of the nunc pro time order in December 1869. Nor do we think the proceeding could have been justified under § 201, page 471, Gen. Stat., for it can hax’dly be claimed that a memorandum, xxot filed or signed, axid which is incomplete and imperfect in itself, can be considered as one of the papers of the coxxxk, such as will axxthorize the court to go back more than ten years and declare it a record for all that time, axxd oxx his own motion,' without notice, make it a record. Such a power is xxot foxxnd in the language of the scctioxx referred to; and to straiix its language, by giving it such a coxxstruction ixx this case, would lead to endless coxxfusion and great wrong. It is not doxxbted that the power of the court .to enter a nunc pro tunc order withoxxt express statutory provision exists. It is only the power to make the record disclose the truth in a matter in which-right and justice may demand it. This power is however sxxbject to such limitations and restrictions as experience has shown were necessary to prevexxt its abuse. ■ Whether such an order was proper ixi the present case need not be determined. Such an oxdei’, vitally affectixxg the rights of others, should never be made withoxxt aiotice to those to be affected thereby. In Englaixd such orders are made only xxpoxi a rule; Tidd’s Pr., 489, 532, 533; 54 Exxg. Com. Law R., 970; axxd we have foxxnd xio ease in this country whore sxxch orders are made without a rule, or xipon due notice, except in those cases where there has been — 339 — an appeal, and pending the appeal, where the case has been ' held under advisement, if either party die then the judgment is entered nunc pro tune, “that the delay arising from the act of the court may not turn to the prejudice of the party.” Tidd, 932. In all the other cases referred to by counsel for plaintiff in error, where such an order has been made, notice was given and an opportunity offered to contest the action of the court, and to take an appeal. The principle and ■ the reason of it are stated by Ch. Justice Hornblower in The. New Jersey Turnpike Co. v. Hall, 2 Harr., 337, as follows: “ Whenever a court, or any person acting under legal author-' ity,' is to act judicially, or exercise a discretion in a matter- ■ affecting the rights- of another, the party thus to be affected' is to have reasonable notice of the time and place when and where such act is to be done, to the end that he may be heard' in defense, or for the protection-df those rights.” The author-'' ities cited by the defendant in érror show the application of - ■ the rule in almost .every kind, of proceeding. It woiild be difficult to imagine a case where in common justice a notice was more imperatively required than' in this order. More than ten years had elapsed since it is claimed the proceedings were had. The guardian had long ceased to be such in Missouri,-had never given any bond in this'state, tlie ward had become of age, and had long before commenced the action in -which the order-was to be read in evidence. It would be a-grave injustice to sanction such action by holding it valid, for however much we may desire to so ■ rule • in this particular case as to promote what seems to us the equity of the case, we cannot forget that w-e are also fixing rules for a large class of cases. To allow the probate court to-make nunc pro tunc orders, ex parte, ■;without restriction as to -the character of the order, or the time in which it may be made, and with no one present but -the interested attorney, would inevitably open the door to a practice dangerous to the great interests confided to that court. We cannot do it in the face of reason and authority. Perhaps no better illustration of the danger of such a cause could be suggested, than the record — 340 — discloses: On the 22d of July 1862 John W.- Williams and his attorney appeared in the probate court, and procured au order to be made making Williams the guardian from the 5th of July 1859, of the person and estate of Alice A. Clark.. Thus, without a bond, or notice, a man was appointed, to a position of great trust, and from the nature of the appointment the sureties on the bond in Missouri would not be liable.. It is not claimed that this appointment had any validity.. There was much evidence as to notice, but it is so plain that no notice was given that the question is not open to doubt.. On the evening before the order was made one of the attorneys for the plaintiff in error in this case told one of the attorneys for the defendant in error that an application would be made the next morning, but was then informed that the attorney was not employed by defendant in error in that matter; and this is shown to be true in the evidence. This-was no notice to any one, much less to Mrs. Thomas. It is claimed in argument that the recognition of Williamsás tlfe guardian, the filing of inventories, and.the frequent adjudications of the court, are matters necessarily finding him to be the guardian, and are sufficient to show his authority without the appointment being entered of record. • It may readily be conceded that in a suit against the pretended guardian the various orders obtained by him, and his acts,, would be sufficient to establish his character as guardian,, because he would thereby be estopped from denying that he acted in such capacity, and consequently estopped from denying his liability for his acts as such. Again, if the records-were lost, such acts would prima facie establish the fact that such an-appointment had been made. That is, they would be-facts tending to show that, an appointment of record had been made. In this case it is conclusively shown that no appointment had been made of record, and therefore no inference can be-drawn from the facts to support such a conclusion; and to this extent is the decision in Shawhan v. Loffer, 24 Iowa, 217. In a case involving a similar principle in Massachusetts the court say that to draw an inference that an order had been made, from — 341 — •subsequent ones, would “be as irregular as it would be for a •common-law court to issue an execution without any evidence ■of a judgment except what might be contained in the execution:” Chase v. Hathaway, 14 Mass., 226. See also Hutchins v. Johnson, 12 Conn., 376. “The guardian derives his authority from his appointment which is of record:” Maxon v. Sawyer, 12 Ohio, 195. Coon v. Cook, 6 Ind., 268, is a •case showing that subsequent orders cannot be used to show ■that a previous one had been made; and so is Makepeace v. Lukens, 27 Ind., 435. It is claimed that the defendant in error, after coming of :age, ratified the sale by her acts; biit we fail to see' in’-the record any evidence that ought to be of the slightest weight .•as tending to show a ratification. It -is -true, that immediately ■after ai’riving of age an attorney who had been very busy in •obtaining orders for the sale of her property took her around in his buggy, .pointing out the lots that had been sold and those that still remained to her; but there is no word that indicates her approval or disapproval of the sales made. Under the circumstances any approval would have been of little or no consequence, but there was none. The record also fails to show that one dollar of the purchase-money ever came into her hands. It is true that Williams testifies that a part of it was used for her maintenance and education while she was .•still an infant, but such.use cannot be tortured into a ratification of the sale. About the time the defendant in error came •of age she signed a paper releasing the sureties on the gpar•dian’s bond in Missouri from any responsibility to her by -reason thereof. It is claimed that this was a recognition of Williams as guardian. There is much testimony as to whether this release was made before or after defendant in •error was of age. Without analyzing the evidence on this point we assume that she was of age when she signed it, and that the release was valid and binding; and still we are ■unable to see how it affects this case. If it be held that it is a solemn and binding recognition that Williams was guardian, it is only that he was guardian in Missouri, and in no way — 342 — estops her from denying that he was guardian in Kansas. It-lacks other essential elements of an estoppel, not necessary •now to designate. The conclusion we have reached on this point of the case renders it unnecessary to examine the other defects in the sale by the pretended guardian, although one of them at least would probably prove as fatal to the plaintiff in error as the one decided. There being no basis for the pretended sale, the court correctly ■ instructed the jury to find for the plaintiff, the defendant in error here, and the judgment is affirmed. Valentine, J., concurring. Brewer, J., not sitting" im/this case.