Persinger v. Jubb , 1883 Mich. LEXIS 493 ( 1883 )

Cooley, J.

Ejectment to recover lands, situate in Dear-born, Wayne county, and constituting part of private claim No. 97.

The plaintiff deduces title from her father, William Mc-Yay, who died in 1864, leaving, besides the plaintiff, two children, William and Eliza, and also Henry, the son of a daughter, who had died in 1856. Eliza, the widow of William McYay, Senior, was appointed administratrix on his estate,, and she was also appointed guardian to the plaintiff and Henry, who were minors. In 1865, on the application of the widow, the lands belonging to the estate were partitioned between the children and the grandchild, and in 1867 the parcels allotted to the two minors were sold in two separate proceedings, and the defendant in this suit became the purchaser. The plaintiff contests the validity of both the partition and the sales, and seeks to recover her undivided1 interest as heir at law in all the lands. If the partition is sustained, she claims the land set off to her by it.

Several supposed defects in the partition proceedings are pointed out.

1. It is assumed in those proceedings that Henry was one of the heirs at law; whereas plaintiff claims and introduces evidence to show that he was an illegitimate child, and therefore incapable of claiming a share in the estate, the statute expressly declaring that an illegitimate child “ shall not be allowed to claim, as representing his mother, any part of the estate of any of her kindred, either lineal or collateral.” Comp. L. § 4310. [How. St. § 5773 a.~\

It seems to be an answer to this that the statute in terms makes the partition “conclusive on all the heirs and devisees, and all persons claiming under them, and upon all persons interested.” Comp. L. § 4512. [How. St. § 5980.] It is argued that it is only conclusive when it is made between the persons entitled; but the order for partition recites that Henry is entitled with the others ; and this is an adjudication which cannot be assailed collaterally. It is said that this adjudication ought to precede the order for partition; and regularly that it so; but there seems to be no very substantial reason why they may not be united. No one is harmed by that course, and it is not uncommon in probate courts and other courts for adjudications that immediately succeed each other to be joined in one order.

2. The partition between the heirs was made on the application of the administratrix; and this it is said was incompetent, because she was in no way concerned. It is true that as administratrix she was not concerned : but she was widow with a right of dower, and she was also guardian for the two minor heirs. If she had described herself as guardian, the right would have been apparent. But we are inclined to regard the misdescription as a mere informality. The interest existed, and was apparent to the judge of probate when he received and acted upon the petition which she presented, and he would have had power to permit an amendment to show the fact in any stage of the proceedings. This being so, the proceedings ought not to be held void in another court for the informality.

3. The proof of notice to the parties concerned is said to be fatally defective. The defect consists in this, that the itffidavit.of service has no venue. But it is indorsed on the back of the notice itself, which is properly entitled, and is .-sworn to before the register of probate. The venue is thus •supplied.

4. The commissioners in partition set off to the plaintiff •the reversion in land assigned to the widow for her dower. This, it is said, was incompetent under § 4515 of Compiled Laws. [How. St. § 5983.] But that statute does not forbid partition before the dower expires; it only provides for its being made afterwards. It is applicable when ■there is occasion for it, and not otherwise.

We find no fatal defect in the partition proceedings, and pass to the proceedings on the sales.

1. The description of the land in the notice of the first sale is said to have been defective. The description is as .follows:

“ All the right, title, and interest of said minors in and to four and thirty-eight one-hundredths acres of land, assigned to Mrs. Eliza Mc^ay, widow of the late William McYay, of Dearborn, Wayne county, Michigan, for and as a portion of her dower in and to the estate of said William McYay, deceased, assigned to her by the commissioners in dower in said matter, and being a part of said estate next to and adjoining the ridge road, so-called, on the westerly side thereof; also three acres and fourteen one-hundreths on the westerly side of the river road, being in the same condition as first above-described tract, and being a part of the McYay estate in Dearborn, aforesaid.”

No doubt this description might be improved, but there could have been no difficulty in locating the land by means -of it, with the aid of such local inquiries áre as usually needful. It may be assumed that it would not be well known in the neighborhood what part of an estate had been .set off to the widow for her dower, but some other particulars are here given to aid in identifying the land intended.

2. The oath taken by the guardian before making the mle is said to be defective because entitled merely “ In the matter of the estate of Henry McYay et ah, minors.” But this identified the estate, which is the office of the entitling in any case.

3. The affidavit of publication of notice of sale in a newspaper showed a publication for three weeks only, when six were required. It was shown by other evidence, however, that sufficient publication was had, so that the defect in the-affidavit became unimportant in this suit. The affidavit is for the purposes of a permanent record; but if the record is not made, the facts may nevertheless be shown.

4. There was no affidavit on file of the posting of notices of sale as required by law, but the report of sale, made under oath, showed that the posting took place, and the order confirming the sale recites the fact. This is sufficient.

The supposed defects in the second sale are:

1. The bond given by the guardian on the sale does not, appear by any indorsement to have been approved by the probate judge. But the order confirming the sale recites an approval, and the fact may as well appear by the order as in any other manner.

2. The guardian reports two parcels of land sold, one belonging to each of her wards, for a round sum named. This, it is said, is a report that the two were sold together for the one sum. But, while this may be the most natural and obvious construction of the report, it is not a necessary construction. The report was made to a judge having power to inquire into the facts, and who was required in the performance of his judicial duty to do so ; and we cannot say that he did not find that the parcels were separately sold. He seems, at any rate, to have satisfied himself in respect to the sale, and to have confirmed it accordingly • and we discover nothing that should necessarily have precluded this action.

"We agree with the circuit judge that the plaintiff made no case, and the judgment must be affirmed with costs.

The other Justices concurred.