Hite & Wife v. Thompson

RylaND, Judge, delivered the opinion of the court. 1. The only questions worthy of consideration in this case, arise upon the evidence offered by the defendants in the court below, that is, the record of the proceedings on the petition for partition, brought by Abernathy against the heirs of Marders. In the opinion of this court, the record of those proceedings [464] Vas properly admitted, and.tbe sale ofdéíed by tbe court on ‘that petition fór 'pártitión'isuonclusive upon the'parties thereto. Under the statute of this state concerning partition, (:R. C. 1825, the law governing the proceedings in this case,) the'Circuit Court, for any of the purposes Of said'partitibn,'h'ad'th'e power and authority to appoint 'a guardian for' any minor, whether 'such minor was living‘in Or out ’Of this state, and that, too, either before or after the commencement of any proceeding by virtue 'of said: act concerning partition. Such guardian'thus appointed by the Circuit Court, in such proceeding,'had the 'same power as‘ any géheral guardian. This same:statut'e of partition declares, “ That the guardians of 'all minors and per - •sons of unsound mind, appointed according todáw, shall be and are hereby authorized," on behalf 'of their respective wards,' to do and perform'any matter or thin'g'respécting:'the división of ariy lands,'tenements "or hereditaments, as herein‘‘directed, which shall be binding on such ward, and deemed as valid to every purpose,'as if the same had been done by'such ward áftérhis •disabilities are removed.’5 Notwithstanding the first'Section of the said act states, “ That if any of the parties to be notified shall reside out of this state, or cannot be found therein,'the notice describing the lands, &c., shall be published for the ''space of two'months, in one Of the public newspapers printed in this state, which shall he deemed sufficient notice, &c., we think the power given to'the courts to "appoint-a guardian for any minor, either residing within or without this state, either before Or afterthe commencement of any proceeding under the partition act, when exercised by the courts so appointing such guardian, does away with the necessity of any publication of the notice. The statute expressly authorizes-the courts to appoint the guardian before the commencement of any proceeding to obtain partition 'as'well as to 'appoint after such commencement. In the proceedings on the petition for partition in this caSe, ' the court'appoihted the 'guardian' for the minor heirs' of Har-ders after the commencement. The petitioner, Abernathy, was [465] himself the general guardian of these heirs, but for more cau- i tion, the Circuit Court appointed another person guardian, who appeared and answered the petition. Thus the parties were, under the law concerning “partition,” properly in court, and the proceedings were afterwards carried on by them. 2. It appears that by consent of the parties (and the guardian by law had a full right and power to do anything that his ward could have done, had all disability been removed) the sale of the land in question was directed to be at private and not public vendue; it wras to be for no.t less than such a sum, the supposed value of the land. The commissioners sold at private sale for an amount exceeding the sum specified in the order; a third person purchased — the deed was made by the commissioners, and the report of the proceedings of the commissioners approved. The statute did not require the infant defendants to be served with notice, either by publication or by personal service, before the Circuit Court had authority to appoint a guardian. This proceeding is under the statute of partition; it is purely statutory, and when the record shows a general compliance substantially with the provisions of the statute, it is binding and conclusive between the parties thereto. The various defects pointed out by the plaintiffs to, the record of the proceedings in partition, are of no weight or force. This, court will not critically and minutely investigate the proceedings of the courts ordering the sales of real estate, where they have general jurisdiction of such matters, in order, to set aside such sales and' declare them void. Courts are inclined to, uphold judicial sales, and it is very well that such is their tendency ; a contrary course would be ruinous in its consequences. No person could feel safe in purchasing real property, and a sacrifice of it would follow, fatal in its effects alike both to creditor and debtor. In the view, then, that this court has taken of the law governing the proceedings under the partition act of 1825, there is no error in the judgment of the lower court. The judgment is accordingly affirmed, Judge Scott concurring; Judge Gamble not sitting.