Dawson v. Helmes

Beiíbt, J. This in an action in the nature of ejectment, defendant being in possession. Both parties claim to derive title from Benjamin Young. Plaintiff, to make out his title, put in evidence three pages of Book A of Deeds of the registry of deeds for McLeod ■county. These are a record of a deed of the land in controversy, dated January 16, 1858, and purporting to have been executed by a guardian of Benjamin Young, and a record of a copy (certified by the probate judge of Dakota county) of an order of said judge dated February 23, 1858, confirming a sale assumed to be that in pursuance of which the guardian’s deed was executed. A copy so certified is authorized to be recorded, and the record made evidence, by Laws 1873, c. 57, (Gen. St. 1878, c. 57, §§ 61-63;) but we discover no legislation validating any record made, as this was, before the passage of the act of 1873. We allude to this, however, only with reference to a possible second trial of the case, since, upon the trial had, the records mentioned were received in evidence, and, so far as the -settled case show's, without objection. .Our principal concern at the present time is with the effect of the order of confirmation, admitting that it w'as properly proved. With reference to guardians’ sales of real estate, the statute in force at the date of the order of confirmation involved in this case (Pub. St. c. 39, § 21, identical with Gen. St. 1878, c. 57, § 44,) provides that “if it shall appear to the judge of probate that the sale was legally made and fairly conducted, and that the sum bid was not disproportionate to the value of the property sold, or, if disproportionate, that a greater sum than above specified cannot be obtained, he shall make an order confirming such sale, and directing conveyances to be executed.” All the facts necessary to appear to the judge of probate to authorize him to confirm a sale are thus specified in the statute. These facts are, therefore, the basis of the order of confirmation, and it adjudicates upon them alone. This adjudication is confined to the acts of the guardian in making and conducting the sale and to the sufficiency of the bid. . The order of confirmation passes upon nothing else, and hence it is not proof of any prior proceeding. This construction of our statute is sustained by like con [112] structions of analogous statutes in other jurisdictions. Mathews v. Eddy, 4 Or. 225, 234; Koehler v. Ball, 2 Kan. 160, 173; Challiss v. Wise, 2 Kan. 193, 197; Buckingham v. Granville Alex. Soc., 2 Ohio, 360; and see Rorer on Jud. Sales, § 104 et seq.; Bethel v. Bethel, 6 Bush, (Ky.) 65; Shiver's Lessee v. Lynn, 2 How. 43. No proof of license to sell, or of any antecedent proceeding, was offered upon the trial below. The case was, then, one of a mere purported guardian’s sale, without any evidence of authority to make it. Proof of such a sale had no tendency to establish a transmission of title. The order of confirmation in this case appears from its date to have been made after the execution of the guardian’s deed. Although, as a matter of regularity, the confirmation of the sale should precede the execution of the deed, the fact that it succeeds it does not render it ineffectual. It relates to the execution of the deed, and sanctions it, so that the substantial result is the same as if the deed had been made after and in pursuance of the confirmation. Evans v. Spurgin, 6 Gratt. 107. We decide this point rather with reference to a second trial than to the exigency of the present appeal. Further to sustain the guardian’s sale, plaintiff relies upon an act of the legislature (Laws 1864, c. 45, § 2,) which provides that where an order of confirmation of a guardian’s sale had been made prior to the passage of such act, no proceedings shall be had to set aside and vacate tbe sale after the expiration of two years from such passage, and that the conveyances of the guardian, made in pursuance of any such sale, shall not, after the’expiration of said two years, be voided by any court, etc. Irrespective of any other objection to the application of these provisions of the act of 1864 to this case, it is enough to say that they cannot be intended to apply to a sale made by a guardian without any license of sale, or, by one not a guardian. Such a sale is not a guardian’s sale in any statutory sense. See Townsend v. Tallant, 33 Cal. 45; Bethel v. Bethel, 6 Bush, (Ky.) 65. The same remark is applicable to the provision as the conveyances of guardians. Streeter v. Wilkinson, 24 Minn. 288, cited by plaintiff, as the opinion of the court shows, was the case of a sale made pursuant to a license. Bev. St. 1851, c. 51, § 22; c. 52, § 50, cited and relied upon by [113] plaintiff, are not, in terms, applicable to the case of a party in possession defending a title derived from a ward against the affirmative attack of one relying on a guardian’s sale. Irrespective of this fact, the plaintiff’s reliance upon them is easily disposed of upon grounds analogous to those upon which we have j ust disposed of his reference to the act of 1864. This brings us to the second main question in the case. It appears that on March 11, 1867, Benjamin Young, then a minor, executed a warranty deed of the premises in dispute to the plamtiff’s grantors. There was also evidence tending to show, and from which the jury had the right to infer, that on the 12th day of December, 1873, Benjamin Young, then of age, executed a warranty deed of the same premises to Shillock, the grantor of defendant’s grantor. The former deed was recorded May 7, 1874; the latter, December 24, 1873. The defendant contends that the latter deed was a disaffirmance of the former, and in this he is clearly right. Dixon v. Merritt, 21 Minn. 196; 1 Am. Lead. Cas. 256-258; Mustard v. Wohlford's Heirs, 15 Gratt. 329. It is not claimed that any delay of Benjamin Young to disaffirm was an affirmance of his deed to plaintiff’s grantors. In fact, the plaintiff’s counsel expressly concedes that the delay would have no such effect in this case. To give effect to the dis-affirmance of an infant’s deed of land, it is not necessary that his grantee should be placed in statu guo by the restoration of the consideration or otherwise. Chandler v. Simmons, 97 Mass. 508, 514; Tucker v. Moreland, 10 Pet. 58, 73. Where the infant, upon reaching majority, applies to a court of equity to have his deed avoided, the rule may be different. But the question then presented differs from that raised by a disaffirmance which has actually taken place. So, too, upon disaffirming, the former infant may, in some circumstances, be liable to restore the consideration to his grantee, or otherwise to place him in statu quo; but it does not follow that he must do either of these things as a condition precedent of disaffirmance. The rule with reference to the disaffirmance by an infant or former infant of a transfer of personal property is quite different from that as to disaf-firmance of an infant’s conveyance of real estate. These consider114 ations dispose of most if not all of the authorities cited by plaintiff • upon the subject of disaffirmance. The court in this case directed the jury to render a verdict for the defendant. The plaintiff contends that the question of fact as to whether Benjamin had avoided his deed to plaintiff’s grantors after he reached majority, should have been submitted to the jury. If he means by this that the question, whether he ever executed the deed to S hillock, should have been submitted to the jury, we think he is clearly wrong. The execution of this deed was so well proved, and the testimony against the execution so worthless, that, if the jury had found against the execution, it would obviously have been the duty of the court to set the verdict aside. In such case a direction to find that the deed was executed is not improper. Phœnix Ins. Co. v. Doster, 106 U. S. 30. If, again, the plaintiff means that the question, whether the deed to Shillock, admitting its execution, was a disaffirmance of the deed to plaintiff’s grantors, ought to have been submitted to the jury, he misconceives the rule of law which makes such deed per se a disaffirmance, in the absence of controlling circumstances to the contrary. Upon this point we have already cited authorities. Order affirmed.