Seaverns v. Gerke

SAWYER, Circuit Judge (after stating the facts). Upon the facts stated, the first question presented is, as to the effect of the sale hy Bidwell, assuming to act as administrator of the estate of Edward A. Farwell, deceased, under authority claimed to have been derived from Schoolcraft, as alcalde or judge of the court of first instance. It would be going a great way to hold that Schoolcraft could legally exercise any such judicial authority as he is claimed to have exercised in this case, by virtue merely of an election by the people at a public mass meeting held under no existing law, and without any other recognized authority. But, without deciding the question, I shall concede for the purposes of this case, that he was vested with all the authority that alcaldes, appointed by the military governors in the usual way at that time, were authorized to exercise. On this hypothesis, it is claimed by the defendants that the case is within the decision in Ryder v. Cohn, 37 Cal. 69, and governed by it. That case, undoubtedly, goes to the uttermost limit of the legal principle invoked by the court to sustain the sale then under consideration. This decision was by a divided court. It fell to my lot to participate in it, and it was after great hesitation that I yielded my concurrence. Without questioning the correctness of that decision, it would, in my judgment, be necessary to go far beyond it to sustain the sale by Bidwell now in question. In that case the proceedings were of the most formal character, and there was a complete formal record of every step in the proceedings, from the beginning to the end, except that it did not affirmatively appear that any notice of the application was given; but the court held that under the decision in Hahn v. Kelly, 34 Cal. 391, the court being one of general jurisdiction, all presumptions were conclusively in favor of the record, and that its judgments would be upheld on a collateral attack, if tested by the strict rules of the common law. Besides, the record shows that “Edward Norton. Esq., appeared as and was attorney for the absent heirs,” who were adults. 37 Cal. 77. In this case there is nothing in the semblance of a record. No application was ever filed; no record of any order or action of the court is produced, and none is shown to have ever existed. The only two orders of which there is any evidence of their having ever existed in writing, are the orders approving the account of Bidwell and allowing an attorney’s fee of $50, entered by the probate court on May 17, 1850. The authority of that court was wholly derived from the probate act of the state of California, which, as has long been settled, had no application to the estates of persons who died before the passage of that act. Grimes v. Norris, 6 Cal. 624; Tevis v. Pitcher, 10 Cal. 465; De la Guerra v. Packard, 17 Cal. 193; Soto v. Kroder, 19 Cal. 97; Downer v. Smith, 24 Cal. 114; People v. Senter, 28 Cal. 502; Wilson v. Castro, 31 Cal. 420; and Coppinger v. Rice, 33 Cal. 408. Besides, as will be seen by referring to the statement of facts, the statute of February 28, 1S50, expressly conferred authority to proceed in “all cases and proceedings” pending before alcaldes and courts of the first instance, at the date of the transfers of the records of the state courts, upon the district courts and justices of the peace, and not upon probate courts. The only written evidence of any act performed in the case by either of the alcaldes or judges of the court of first instance, acting during the progress of the proceedings — the only courts having any jurisdiction in the matter-shown to have ever existed, is the taking and certifying by Judge Thomas of the oaths of Hensley and Reading to the appraisement, October 25, 1859, and marking that document filed October 27; and on the latter day marking filed the auctioneer's report of sale; and neither of these filing marks is attested by the signature of the officer. To sustain a forced sale of large landed estates of absent heirs under judicial proceedings so loosely conducted, and of which there does not appear to have been any record, or other written evidence, would be going beyond any authority or legal principle brought to the notice of the court; and further, I think, than any court having a due regard for the safety of private rights, would be justified in going. Besides, the heirs of John Potter presented themselves as claimants in the supplemental petition for the confirmation of the Mexican grant made to Farwell, and set out their title derived by the sale by Bidwell as the basis of their claim. Thus, in a proceeding to which they were parties seeking for themselves confirmation of the grant, their claim to the land, based upon this same title, was rejected, and the adverse claim of Farwell’s heirs confirmed, and the lands patented to said heirs in accordance with the decree of confirmation. If Potter's heirs or their successors in interest should file a bill against the heirs of Farwell, as patentee, to charge them as trustees and seek a conveyance of the legal title. I apprehend that no court would grant the relief upon the evidence as presented in this case. If not, the same evidence and state of facts ought not to constitute a valid defense to the present bill. 2. The next question is, as to the validity of the sale of complainants’ interest in the premises by Mighels.as guardian, which is earnestly and confidently assailed on various grounds. The first ground is, that Mighels never was legally appointed guardian, the court never having acquired jurisdiction to appoint a guardian for want of notice. The act relating to guardians, in force at the time of the appointment of Mighels as guardian for complainants, so far as relates to this case, provided that the “probate judge of each county, when it shall appear to him necessary or convenient, may [946] appoint guardians to minors * * * who shall reside without the state and have any estate within the county.” St 1850, p. 268, § 1. Section 43 of the same act is as follows: “When any minor or other person liable to be put under guardianship, according to the provisions of this act, shall reside without the state, and shall have any estate therein, any friend of such person, or any one interested in the estate in expectancy or otherwise, may apply to the probate judge of any county in which there may be any estate of such absent person, and after notice given to all persons interested, in such manner as the judge shall order, and after a full hearing and examination, if it shall appear to him proper, he may appoint a guardian for such person.” Id. 272. Under this section the authority to appoint a guardian is “after notice is given to all persons interested, in such manner as the judge shall order.” In this case, as in all actions where the rights of parties are to be affected by judicial proceedings, the fundamental condition of authority to act at all is to first acquire jurisdiction of the persons whose rights of property are to be affected, by giving them notice of the proceeding. Until the party to be affected has legal notice, the court has no jurisdiction whatever to act, and all proceedings without notice are without authority and absolutely void for want of jurisdiction. In Gronfier v. Puymirol, 19 Cal. 629, the question was as to the sufficiency, -not the want, of the notice. There was notice given by publication in accordance with the order of the judge, and it was held that the time and manner of the notice, under the express provisions of the statute to that effect, were within the discretion of the judge; but it was not intimated that the judge could acquire jurisdiction without any notice. Besides, some importance seems to have been attached to the fact that the attack was made by third persons in a collateral way. and not by the minor. The court say “third persons cannot question the validity of the order upon any allegation that insufficient notice was given of the hearing of the application for the appointment under the statute.” Id. 632. But in this case there does not appear to have been any notice whatever, and the record of what did take place seems in all respects to be very formal and complete. There is no recital of notice. The appointment was made two days after filing the petition. and only recites the filing of the petition as the basis of the appointment. But notice is essential to give jurisdiction, for the appointment is only to be made “after notice given to all persons interested." The person whose estate is to be divested by some one who voluntarily assumes to intermeddle, is. certainly, a “person interested,” and under the statute is entitled to some notice, even though the kind and manner of it is left to the discretion of the judge. In the language of Mr. Justice Field, in Galpin v. Page [Case No. 5,206], — a case where publication in a prescribed form was authorized: “Where personal service cannot be made by reason of the non-residence in the state or absence of the infant, service must be made by publication, as in other cases. Such publication is the prescribed condition to the exercise of jurisdiction over the infant.” So, in this case, “notice given to the persons interested” — the infants whose estates in many leagues of land are sought to be divested for the purpose of perfecting a contract of sale already made without legal authority, “in such manner as the judge shall order,” “is the prescribed condition to the exercise of jurisdiction over the infant.” This proceeding is in no sense in the nature of a proceeding in rem, like that in Grignon’s Lessees v. Astor, 2 How. [43 U. S.] 319, and in that case letters of administration had been “duly granted and jurisdiction acquired.” It is not sought in case of this guardian sale to apply property in the jurisdiction of the court to the payment of the debts of the infants for which it was liable. The whole object is, to divest the title of the infants by a stranger, on the pretense that it is for their benefit. There certainly should be notice of some sort, as the basis of jurisdiction, and this the statute re'quires. Under the statute placing the proceedings of the probate courts upon the same footing as superior courts of general jurisdiction, and the decision of the supreme court of California in Hahn v. Kelly, 34 Cal. 391, conceding that I might have felt authorized to sustain the appointment of a guardian on the doctrine of presumptions recognized in that case, the supreme court of the United States in. Galpin v. Page, 18 Wall. [85 U. S.] 350, and Mr. Justice Field in the same ease on retrial [Case No. 5,206], have overruled that case and distinctly held that, where the parties to be affected re- ! side out of the jurisdiction of the court, the : record must affirmatively show that every step necessary to give jurisdiction has been regularly taken, otherwise the proceedings are utterly void. That case was in all essential particulars in principle similar to this. The infant, a posthumous child of tender age, was a defendant in an action to settle an alleged i partnership of her deceased father, one of : whose hems she was. An attempt to procure ; sendee by publication of summons upon her i and her mother, with whom she lived in the state of New York, was made. Notice in some i form actually reached the mother, with whom ¡ she resided, as she appeared and defended, j The notice to the infant, in point of fact, was i practically all that could be accomplished; for . the same attorney who appeared for the moth- ; er, and, doubtless, at her suggestion and with ; her approval, was appointed guardian ad litem j by the court, answered and defended the same as the mother. Besides, her interests and those of the mother were precisely the same, and not adverse. The same defense was actually made, and undoubtedly by the same guardian ad litem that it would have been made by had the publication been made in strict accordance with the provisions of the [947] statute. Yet the supreme court of the United States held that the appointment of guardian ad litem, without the record showing affirmatively that the service had been made in strict accordance with the provisions of the statute, was utterly void, and, consequently, that all subsequent proceedings were void. In the present case the proceedings were instituted by a stranger, upon advice of counsel of an adverse party, ostensibly, it is true, and it may perhaps have really been, in the interest of the infants, but for the express purpose of divesting their title to lands. They were entitled to notice so that an opportunity might be furnished to ascertain whether for their interest or not, and to oppose it if deemed expedient so to do. And the statute in this case, as in the other, imposes notice in some manner as a condition precedent to the appointment — as an essential prerequisite to the attaching of jurisdiction to act in the case. In my judgment it is impossible to distinguish this case from Galpin v. Page [supra]. If there is anything to the contrary in the prior decisions of the same court it must be regarded as overruled. This decision is of . course conclusive upon this court. I feel : bound, therefore, to hold the appointment of , guardian to be void for want of the notice prescribed by the statute, and that the court | never acquired jurisdiction to affect the rights | of complainants in the proceedings had. The ¡ appointment of Mighel’s guardian being void ! on the grounds indicated, and this appointment being the basis of the subsequent proceedings, authorities to show that all subsequent action must necessarily be void, do not seem to be required. Yet authorities on the exact point are not wanting. Frederick v. Pacquette, 19 Wis. 541. See, also, Galpin v. Page, before cited. 3. It is next claimed by defendants that if the guardian’s sale is void in consequence of the defects in the proceeding, it is rendered valid by the provisions of the “Act in Relation to Probate Sales” of 186G. St. 1865-6G, p. 824. Section 1 of said act is as follows: “In all cases where real estate has been sold in this state under the order of the probate courts of the several counties to purchasers in good faith, for a valuable consideration, and defects of form, or omissions, or errors exist in any of the proceedings, such sales are hereby ratified, confirmed, and made valid and sufficient in law to transfer the title to the property sold; provided, however, that this act shall not affect in any manner rights acquired prior to its passage, by vendees, grantees, or mortgagees, who claim interests in or liens upon such property under heirs or dev-isees adversely to such probate sales, nor to sanction in any manner cases of actual fraud." There is something more in the probate proceedings under consideration than a defect of form or mere errors. There is a- failure to acquire jurisdiction of the parties whose interests are to be affected — a failure of authority ro act at all. This is. it is true, the result of an “omission” to give notice; but it is hardly to be supposed that the legislature contemplated such an omission. The term doubtless refers to omissions in the acts to be performed in the exercise of a jurisdiction, which has once attached, and not omissions of acts essential to give jurisdiction to act at all. If the act was intended to include the latter, then it must be void as to such matters. Before the passage of the act, the proceedings, as we have seen, were utterly void for want of jurisdiction. The rights of the complainants were as much unaffected by the proceedings as if they had never been taken. If then, they became valid by the passage of this act, the title has passed from the complainants to the defendants by virtue of the provisions of the act. That is to say, the legislature has arbitrarily transferred the property of the complainants to the defendants. I suppose it will not be seriously contended that the legislature, by passing a law declaring that' the property of A., by virtue thereof, shall be transferred to and vested in B., can transfer the property of one private party to another. That such an act would be unconstitutional, it seems to me, requires no argument to establish; yet such, substantially, would be the result if the act in question has the effect claimed. There are other formidable objections to the validity of the proceedings upon which defendants rely, but it will be unnecessary to consider them, as those already decided dispose of the case. There must be a decree for the complainants as to an undivided two-fifteenths of the premises in question, in pursuance of the prayer of the bill, with costs, and it is so ordered.