Montour v. Purdy

— 401 — By the Court -Berry, J. The denial of “ each and every material allegation of the complaint ” in this case, will not do. Whether a denial be general, or specific, there should be no room for mistake as to what is denied, and what is admitted. The advantage of a verification of pleadings will be, in a great degree, lost by any other construction. Nor must parties be permitted to escape the consequences of perjury, by claiming that such and such allegations, (which were material and denied,) were regarded by them as immaterial, and so there was no corrupt intent. The principal question in this ease relates to the guardian’s sale, set up in the second defense. If that sale was invalid as pleaded, then the demurrer was well taken. It is clearly the theory of our statute, that the proceedings of a court of probate, in relation to guardian’s sales, may be overhauled in another way than by bringing them up for review .by direct appeal to the District Court. Though a sale may have been authorized and confirmed by a probate court, it may be attacked in an action in the nature of ejectment.brought by the ward or his representatives, against the purchaser or his representatives, being the tenant in possession. The grounds of this attack are specified in the statute. Every irregularity in the proceedings is not fatal, but certain omissions are fatal, and may be taken advantage of in an action like the present, and the doings of the probate court, in that way, collaterally called in question. Section 23, page 416, Pub. Stat., provides as follows: “ In case of an action relating to any estate sold by a guardian under the provisions oí 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 : “ 1. That the guardian was licensed to make the sale by a probate court of competent jurisdiction. — 402 — “2. 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. “3. That he took the oath prescribed in this chapter. “4. That he gave notice of the time and place of sale, as prescribed by law; and, “5. That the premises were sold accordingly, by public auction, and are held by one who purchased them in good faith.” The objects for which a sale may be avoided, are thus pointed out in the statute. The regulations upon this subject are matters of express enactment, so that cases like that of Grignon's Lessees v. Astor, 2 Howard, (U. S.,) have comparatively little application. "Whatever presumptions resting upon considerations of public policy, or upon any other foundation, are allowed in behalf of the validity of the proceedings of probate courts, they cannot be permitted to overcome plain and express provisions of statute. If it turns out upon examination, that the sale in question in this action, lacks any of the requisites prescribed in Sec. 23, it must fall, no matter what arguments, ab vneonvenienti may be urged against such determination. On the other hand, if none of these requisites is wanting,. the sale must stand, whatever else is wanting. The three points in which it is claimed by the appellant that this sale does not appear, by the answer demurred to, to be regular, are those referred to in the first, third, and fourth subdivisions of section 23, viz: as to the license, the guarddian’s oath, and the notice of the time and place of sale. First, as to the notice of the time and place of sale, the statute, section 15, page 415, referring to section 16, page 419, Pub. Stat., requires such notice to be published in a newspaper “for three weeks successively next before such sale.” The allegation of the answer on this head, as qualified by the exhibit to which it refers is, that the notice was published “ for three successive weeks previous ” to the day appointed for — 403 — sale, and the same allegation is made as to the notice of adjournment. This is not giving notice, (in the language of subdivision 4, of section 23, before cited,) “ of the time and place of sale as prescribed by law.” The allegations as to posting notice are too obviously defective to require comment. Second, as to the oath, the statute, Sec. 14, page 415, Pub. Stat., referring to Sec. 48, page 423, and Sec. 22, page 420, Pub. Stat., requires the guardian, before fixing on the time and place of sale, “to take and subscribe an oath in substance, that in disposing of the real estate which he is licensed to sell, he will exert his best endeavors to dispose of the same in such manner as will be most for the advantage of all persons interested.” The allegation of the defense is, that the oath taken in this case was, “ in conducting the sale of the real estate of the said minors, under the order of the probate court, that I will in all respects conduct the same according to law, and for the benefit and best interest of the wards.” We think it would have been far better to have avoided all questions, by a close adherence to the language of section 22, as above quoted, but we are inclined to hold that the oath taken is, in substance, that required, and thus satisfies the statute. “ The best interest of the wards,” would appear to demand the same skill, care and diligence, as the greatest “advantage of all persons interested.” As the oath appears to have been taken at the date of the license, we think it is lair to presume that it was taken before anything was done under the hcense, and of course “before fixing on the time and place of sale.” Third, as to whether “ the guardian was licensed to make the sale by a Probate Court oí competent jurisdiction,” a bcense having been granted by a Probate Court in this case, the question is, was such bcense granted by a Probate Court of competent jurisdiction ? This will depend upon the sense in which the phrase “ competent jurisdiction ” is used in the statute. We think it is susceptible of two meanings. It may signify that the court must acquire and exercise jurisdiction — 404 — competent to grant the license, through and by reason of a strict conformity to the requirements of the statute, by which the steps preliminary to the issue of license are pointed out; or it may signify jurisdiction oyer the subject matter, a sort of authority in the abstract, to hear and determine the case; in other words, “ by a Probate Court of competent jurisdiction ” may be meant, a court whose jurisdiction it is proper to invoke in the given instance. We think the phrase “ competent jurisdiction ” is not to be taken in the'first sense above spoken of, for the section in which the phrase is found is professedly a healing statute, plainly designed to heal certain irregularities, and, therefore, excusing to some extent a noncompliance with the provisions of law. We are of the opinion that the language, “ by a Probate Court of competent jurisdiction,” signifies the Probate Oowrt whose jwisdieUon it is proper to wivoke in the particular case in hand. Section 6, Ch. 38, page 415, Pub. Stat., provides that the application for license to sell must be made to the Probate Court of the county in which the guardian was appointed. In the case at bar, the guardian was appointed in Pamsey county, and the Probate Court of Pamsey county was, therefore, “ the Probate Court of competent jurisdiction ” in this instance, in the meaning of the statute, according to our construction. If this position be sound, it follows, that when the ward, or a party claiming under the ward, attacks a guardian’s sale otherwise than by appeal, he cannot be permitted to go behind the granting of the license any further, or for any other purpose than to inquire whether it was granted by the Probate Court of the county in which the guardian received his appointment. It being ascertained that the license was granted by such Probate Court, the statute, so far as an action like the present is concerned, makes it immaterial whether any of the steps pointed out as preliminary to the obtaining of the license in the regular manner, have been complied with or not. The term “jurisdiction” is used, not unfrequently, as signifying — 405 — “authority to hear and determine,” in the abstract, so to speak. United States v. Anedondo, 6 Peters, 709; Grignon's Lesses v. Aster, 2 How. (U. S.) 338, and cases cited. Thus, we speak of admiralty jurisdiction, of equity jurisdiction, of criminal jurisdiction, and of probate jurisdiction, as denoting the authority of certain courts to adjudicate upon certain classes of matters, which, in the distribution of judicial functions, are assigned to them respectively. The word jurisdiction is also evidently used in this sense in sections 2 and 5, of Art. VI, of our own Constitution, and in section 7 of the same article, in which it is provided that “ a Probate Court shall have jurisdiction over the estates of deceased persons, and persons under guardianship,” etc., etc. So, also, in many passages in the statutes, relating to the powers and duties of the several courts of the State. We think that the Legislature, in view of the fact that in many portions of the country the office of probate judge must be filled by men not learned in the law, (and this would seem to be contemplated by the Constitution,) nor trained to accurate business habits, that the records would often be imperfectly kept; that the thankless and unremunerative duties of guardians are quite generally performed by non-professional persons, without the advice of counsel, enacted the provision upon which we have just been commenting, with a desire to throw security around guardian’s sales, sufficient to encourage bidders to bid freely and fearlessly, and up to the value of the property offered, and for this purpose, they have protected bona fide purchasers against collateral attacks upon guardian’s sales, by giving to the granting of license to sell, the force of an adjudication up.on all the facts which strict conformity to the statute would require to be established as preliminary to the use of such license; and, although the results of this construction of the statute may be to deprive the ward of the land sold, m specie, in some cases where the statutory mode of procuring and consummating a sale has been widely departed from, yet in sec — 406 — tion 24, immediately following section 23 under consideration, ample provision is made for the recovery, by any person interested, of damages arising from any neglect or misconduct in the proceedings of the guardian, by action upon his bond, or otherwise. It was insisted, upon the argument, that the use of the word “ competent,” in the phrase “ competent jurisdiction,” was significant when read by the light of section 25, of the same chapter. It is there provided, that when the validity of the sale is drawn in question by a party claiming adversely to the ward, etc., the sale shall not be held void on account of any irregularity, etc., “ provided, it shall appear that the guardian was licensed to make the sale by the proper Probate Court,” etc. ¥e think the words “competent,” and “proper,” are used synonymously; or, at any rate, that the expression “ proper Probate Court,” is used synonymously with “ Probate Court of competent jurisdiction.” The expression, “ Probate Court having jurisdiction,” seems to be used to accomplish precisely the same purpose in sections 52 and 54, page 424, Pub Stat. In fact, a comparison of sections 23 and 25, above cited, seems rather to confirm the view we have taken, for when the sale is attacked by the w<wd, a bond and oath are made indispensable requisites of a valid sale; while, when it is attacked by a party claiming ad/oerseVy to the ward, neither bond nor oath are requbed. This has, we think, a tendency to show that the ward was expected to rely upon his action, given by section 24, against the guardian, “ on the bond of such guardian, or otherwise.” This was his remedy. A party claiming adversely to the ward, needed no remedy against the guardian. There was no privity between them; no mutuality of rights and duties. But while ample protection was afforded to Iona fide purchasers, the guardian was made liable to the ward for damage, arising from his neglect or misconduct, and so it was . proper, if not necessary, that the existence of the bond (if one — 407 — was required, the general bond being deemed insufficient) should be established, in order to bind the ward by the sale. The statutes of Massachusetts, relating to guardian’s sales, contain provisions similar to those under consideration, but, so far as we discover, they do not appear to have received a judicial construction. The statutes of Michigan, (on the same subject,) which were probably imported from Massachusetts, and are also much like our own, have, in two or three cases, been before the highest court of that State, and have received a construction in the direction of that we have put upon our statute in this opinion. Howard v. Moore, 2 Mich. 226; Coon v. Fry, 6 Ib. 506; Marvin v. Schilling, 12 Ib. 356. Entertaining these views, it follows that we cannot sustain the objections taken to the petition for license, or to the notice, or want of notice, of hearing; but the allegations as to notice of sale being insufficient, the demurrer must be held to have been well taken as to them. The only question remaining, arises upon the construction of an act, entitled, “An Act to protect purchasers of real estate at executor’s, administrator’s, or guardian’s sales,” approved March 3d, 1864. By this act, it is provided, that if any sale shall, for any cause whatever, be held void or irregular, the purchaser in good faith and for value, or his representatives, shall have a lien on the jeal estate sold for the purchase money, taxes paid, and interest thereon. The act goes on to provide for an examination into the proceedings had on the sale, and if the same shall be determined to be irregular, illegal or void, a resale is authorized to be made, and out of the proceeds, the purchase money, taxes and interest aforesaid, are to be paid next after the expenses of sale. This is an action of ejectment to recover possession, and, in the absence of any special provision to tho contrary, there is no reason why the possession should not be surrendered to the rightful claimant, and the lien allowed to stand. There is nothing in the act of 1864 which makes the satisfaction and — 408 — discharge of the lien a condition precedent to an award of possession to the party legally entitled thereto, as owner of the fee, or otherwise. The act of 1864 is complete in itself. It gives the lien (that is, provided it is constitutional, a matter which we have no occasion now to determine) and, in the same breath, provides how that hen may be enforced. This method of enforcement is exclusive. Andover, &c., v. Gould, 6 Mass. 44; 14 Ib. 289. Assuming that the act of 1864 is constitutional, in whole, or in part, the lien which it gives forms no defense to this action. The foregoing views, we think, dispose of all the substantial questions raised in the case, and, of course, lead to the conclusion that the order overruling the demurrer must be reversed. We remand the action, as it may be possible that the objections to the allegations of notice of sale can be obviated by amendment.