Hall v. Wells

The judges delivered opinions seriatim. CAMPBELL, J.: If § 2173 of the Code of 1871 embraces a sale made by order of a Probate Court by a father who had been appointed by such court guardian of his children, this action was barred, because not instituted within one year after said section took effect. It has been argued that the appointment in the year 1855 by the Probate Court of the father of the minors as their guardian was wholly void, and he was not guardian, and the sale he made by order of the Probate Court was not a [297] sale by a guardian; and, therefore, although the sale was in good faith as a matter of fact, and the purchase-money paid, and the land occupied by the purchaser in the belief that he had a perfect title under the sanction of the Probate Court, his possession is not protected by § 2173 of the Code. We adhere to the views expressed in Morgan v. Hazlehurst Lodge, 53 Miss. 665. The section of the code cited was not intended, and does not have the effect, to cure by express enactment illegal or defective proceedings in the Probate Court for the sale of property by administrators, executors or guardians. It has no retrospective operation, but is wholly prospective. It is founded on a view of the past, but looks to the future. It originated in the known fact that a very large proportion of the sales of property by virtue of the orders of Probate Courts was void, from various causes ; and, as insecurity of titles to property is a great public evil, it was determined to provide a short statute of limitations applicable to all cases falling within the existing evil; and the section under review contains the provision to remedy it, not by relating back and validating proceedings, but by requiring all actions to recover any property before that sold by any administrator, executor or guardian, by virtue of the order of any Probate Court, on the ground of the invalidity of such sale, if the sale was in good faith and the purchase-money paid, to be brought within one year after said section should take effect. This section applies to all sales of the class mentioned which are invalid, no matter on what ground. Every sale which is included in the evil intended to be remedied is embraced. The object aimed at is the barring of all actions after the lapse of one year from the 1st of October, 1871, to recover property sold “ by virtue of the order of any Probate Court in this State, on the ground of the invalidity of such sale,” if such sale was made in good faith and the purchase-monej'- paid. The enumeration of administrators, executors and guardians was to cover all sorts of sales by virtue of the order of any Probate Court. The section does not involve the idea of a legally appointed and qualified administrator, executor or guardian, who made a sale by virtue of the order of any Probate Court. The language is, “ any administrator, executor or guardian by [298] virtue of tbe order of any Probate Court.” It is not any legally appointed and qualified administrator, executor or guardian; and to hold that' the statute applies only to sales by a legally appointed and duly qualified one is to interpolate the section, and to circumscribe its beneficial operation within narrower limits than the evil to be remedied, and than, it is to be justly assumed, the legislature intended. It must be presumed that the legislature had in view the legislative and judicial history of the State, and acted with the knowledge that from the time of the territorial existence of Mississippi it had been the habit of the courts charged with orphans’ business to appoint guardians for minors whose fathers were living ; that the terms “ orphans ” and “ minors ” were used interchangeably and as convertible terms in statutes passed both before and after the Constitution of 1832; and that it was not until the year 1860 that it was judicially declared that the power of the Probate Courts to appoint guardians did not extend to minors whose fathers were living, during which long period, in a multitude of instances, guardians had been appointed for minors having living fathers, and vast quantities of land had been sold by such guardians, by virtue of orders of the Probate Courts, and had been sold in good faith and paid for; and it must be supposed that, in providing a measure to quiet titles acquired by virtue of orders of Probate Courts, it was not the intent to exclude this large class of sales, but to include them as falling within the mischief to be remedied. Persons appointed guardians of minors not fatherless were called guardians, and treated as such by the courts and the public. They acted as such in all respects; and whether legally such or not, must be held to be embraced in the language “ any guardian,” as used in the statute under review. The good faith mentioned is actual good faith, consisting in honest belief; and so the administrators, executors and guardians meant are those who acted as such under appointment of the Probate Courts, and under their authority, given in the forms of law, dealt with the estates of decedents and minors. It is not the validity of the action of the Probate Court which affords protection after the expiration of one year, but the fact of holding under a sale made, as matter of fact, in good faith, [299] and purchase-money paid, which the statute seizes upon, and because of these facts bars recovery by the true owner. Invalidity of all kinds, whether merely irregular or void, is presupposed and assumed ; and hence the statute to bar the owner, if he should not proceed to recover the property in one year. There are various states of case in which an appointment by the Probate Courts of administrators, executors and guardians was void for want of power in the court to do the act; but it was not intended by the legislature that the holder of property, under sales by virtue of the order of a Probate Court, should be required to vindicate the power of the court to order the sale, nor its power to appoint the person who invoked the order of the court to sell. The statute was passed with direct reference to the known condition of things, and to meet that, and not upon the view that proceedings in the Probate Courts were what they should have been under the Constitution and laws. The statute does not proceed on the idea of notice to the true owner, by the records of the Probate Court, that his land has been sold; but it requires adverse holding, as calling on the owner to institute his action. This is a necessary implication of the section under consideration. An adverse holding, under a sale made by a guardian appointed for his own children, is just as effectual as notice to the true owner as a like holding under any sale. But, in addition to what has been said, we all agree, after the maturest consideration, that the construction placed upon the Constitution and laws in the case of Stewart v. Morrison, 38 Miss. 417, and cases following that, should not be adopted and followed. We think the Probate Court did have the power in the year 1855 to appoint a guardian to a minor whose father was living. It follows from these views that the second and fourth instructions for the plaintiffs below were improperly given, and the first instruction asked by the defendant below was improperly refused. It is not deemed necessary to pass upon the action of the court below upon the pleadings, as the foregoing view is supposed to be decisive of the case. The judgment should he reversed and new trial awarded.