West Duluth Land Co. v. Kurtz , 45 Minn. 380 ( 1891 )

Mitchell, J.¹

Action to determine adverse claim to real property situated in St. Louis county. The defendants claim title as heirs-at-law of one George Leidner, who died in 1860, intestate, and seised of the property in controversy. The plaintiff' claims title from the same source, under a sale by the guardian of the defendants (then minors) under a license from the probate court of St. Louis county. The guardian who made this sale was the mother of the defendants, who was appointed by the probate court of that county March 2, 1872, the defendants being residents of Wisconsin, where they lived with their mother. The defendants assail the validity both of the appointment of the guardian and of the sale itself. The ground of attack upon the appointment of guardian is that the probate court in Minnesota had no jurisdiction to appoint a general guardian for non-resident minors. That the court had no jurisdiction to appoint a guardian of the persons of non-resident minors is unquestionably true, but it is equally true that the statute authorizes a probate court to appoint a guardian of any estate which a non-resident minor may have in this state, and the validity of such statutes is well settled. Jurisdiction to appoint a guardian exists as well when the infant has property in the state where the jurisdiction is sought to be exercised as when he is domiciled therein. It rests upon a like basis in both. cases, viz., the right and duty of a government to take care of minors, as respects either person or property. The fact that the appointment in this case was too broad, to wit, over both person and estate, did not render it invalid in respect to the estate which the minors had within the jurisdiction of the court. Davis v. Hudson, 29 Minn. 27, (11 N. W. Rep. 136.) The contention of defendants, that a guardian of the estate of the minors within the state could only be appointed after a general guardianship in the state of the domicile, and as ancillary thereto, is wholly incorrect. The statute imposes no such condition, and it would be of doubtful constitutionality if it did.

2. This brings us to the grounds of attack against the sale itself. No defects or irregularities will invalidate the sale, unless they go to one or more of the five essentials specified in Gen. St. 1878, c. 57, § 51. The record in this case shows that the guardian was licensed to make this sale by the probate court by which she was appointed, and in the county in which the land was situated; consequently it was the court “having jurisdiction.” Also that the guardian gave a bond, which was approved by the judge of probate, and took the oath prescribed by statute. This oath having been found among the regular files of the probate court, the fact that the judge had omitted or neglected to indorse upon it the fact and date of its filing was not material. There is no proof, and there is no presumption, that the oath was spurious, or that it was surreptitiously placed in the files after the sale. It shows by its date that it was made before. We fail to discover any defects, or even irregularities, in the notice of the time and place of sale. All that the statute requires is that the notice be posted and published for three weeks nest before the sale. The guardian’s report of sale, which was verified, states in detail a compliance with every requirement both of statute and of the license to sell, and a sale according to the notice at public auction, and the sale was duly confirmed by the court. These seem to cover the whole ground, so as to leave no available objection to the sale in this collateral action.

We have made no reference to the alleged insufficiency of the notice of the hearing of the application for license to sell, for, even if the sale could be avoided on any such ground, the objections to the notice seem to be based upon the misapprehension of counsel that the statute required it to.be published six weeks instead of only four, as the fact is.

What we have said renders it unnecessary to consider the effect or applicability of the statute of limitation (Laws 1889, c. 46, § 204) invoked by plaintiff.

Judgment affirmed.

1 Vanderburgh, J., did not sit.