Hamilton v. Winona Bridge Ry. Co. ( 1892 )

Vanderburgh, J.

Certain premises described in the record were appropriated in condemnation proceedings by the defendant bridge company, and the amount of damages assessed therein has been deposited, in pursuance of the order of the court, with the clerk of the district court of Winona county, to await the determination of the rights of the several claimants. The land in controversy, a portion of which was condemned, is known and designated as lot 2, in section 25, township 107, range 7, in Winona county, and was the homestead of John Keyes, owned and occupied by him and his family as such at the time of his death, December 2, 1876. He left him surviving his widow Angeline E. Keyes, and several children, his sole heirs at law. His widow claimed and was allowed a life estate in the homestead premises, which she continued to occupy to the time of the condemnation proceedings. After the death of John Keyes, proceedings were taken in the probate court of Winona county for the sale of the government lot 2 in question, with other lands at private sale, subject to the life estate of the widow, and the administrators were on the 10th day of August, 1878, duly licensed by the probate court to sell the same at private sale. The administrators gave a bond upon the sale, which was duly approved by the court, and took the oath required, which was reduced to writing in due ■form, and filed. Notice of the sale was given by the administrators, and due publication thereof had. In pursuance of the notice, the administrators sold the lot 2 referred to, subject' to the life estate of the widow, to one Herman Wenke; and upon the decease of the latter his heirs conveyed all the right, title, and interest acquired by him upon such administrators’ sale to defendants Henry C. Bolcom, William H. Laird, Matthew Gr. Norton, and James L. Norton in the proportion of three-sixteenths each, and to Thomas Wilson and Samuel W. Hamilton in the proportion of two-sixteenths each.

The principal question fairly presented by the record upon this appeal is whether the proceedings upon the sale of the reversionary interest of the heirs in lot 2 by the administrators were valid, so as to pass the title to Herman Wenke, as found by the trial court.

The first defect complained of is the insufficiency of the adminis^ trators’ bond upon the sale. It was necessary that a sale bond approved by the court should be given. 1878 Gr. S. ch. 57, §§ 37, 40, 51.

In the order of license made by the probate court, August 10, 1878, the court directed that before making sale of said real estate, or any part thereof, the administrators should give bond to the judge of the probate court, “in the sum of seven thousand dollars, with sufficient sureties to be approved by the judge.” The bond was, however, subsequently executed in the penal sum' of four instead of seven thousand dollars, with sufficient sureties, but it was approved by the judge as follows, on the day of its execution: “I do hereby approve the within bond.” There is no question but that the bond was satisfactory and sufficient. When it was executed an appraisal had been made which showed the value of the property to be less than $3,000. It wras not necessary to the validity of the proceedings that the license should have specified the amount of the security, and the fact did not conclude the judge from changing the amount or approving a bond in a different sum. The bond as approved was in compliance with the statute. The bond having been duly accepted, approved, and deposited with the judge of probate, the duty of the administrators in respect to the same was performed, and the subsequent failure of the judge to record the same did not invalidate the proceedings, or subject them to collateral attack.

2. The next objection urged by the appellant against the validity of the proceedings is the alleged defective description of the property in the notice of sale, which was as follows:

“Notice is hereby given that pursuant to and by virtue of a license to the undersigned, administrators of the estate of John Keyes, deceased, granted on the 10th day of August, A. D. 1878, by the judge of probate in and for the county of Winona, in the state of Minnesota, to sell at private sale all the real estate of which said deceased died seised, we shall offer for sale and shall sell at private sale, at any time subsequent to September 28, A. D. 1878, and prior to August 10, 1879, the following pieces and parcels of land, situated in said county, to wit: * * * Lot No. two, (2,) in township No. one hundred and seven, (107,) range No. seven, (7,) subject to the life estate of Angeline E. Keyes, widow of said deceased. * * *

“Said lands will be sold for such price as may be agreed upon, not less than the value thereof as appraised, subject to all incumbrances thereon, by mortgage or otherwise, now existing, and the terms of sale will be either all cash or one half cash, and the balance on one year’s time, secured by mortgage on the land.

“Winona, Minn., August 22, 187S.”

It will be observed that the section (25) is omitted in the notice, and it is claimed to be void for uncertainty. The original notice also contained other lands in Winona county of which John Keyes died seised.

It will also be observed that the sale was to be private at any time between September 28, 1878, and August 10, 1879. This gave ample time for investigation and inquiry in respect to the lands of John Keyes authorized to be sold, and the notice would be construed to be limited to the lands of John Keyes situated in Winona county. The notice shows that the lands to be sold belonged to the estate of John Keyes. Government lot 2, owned by him, was embraced therein, and was a part of the lands advertised to be sold, and the description was further limited and defined by the reference to the fact that the lot in question was subject to the life estate therein of Angeline E. Keyes. There can be no presumption that there was more than one parcel of that description belonging to John Keyes in Winona county. The notice and description were sufficient to enable purchasers and all persons interested to understand what property was referred to and intended to be sold. The sale was duly reported to the court, and confirmed, and the administrators executed deeds to the purchaser under the direction of the court, and they are found to have purchased the property in good faith.

We think the description was sufficient for the purposes of a private sale, at least, and the sale was not void by reason of the defect.

Upon the appeal from the award of the commissioners, all the parties joined in a stipulation for the trial of all questions embraced in the appeal by the court, without a jury, except the question of the total .compensation to be paid by the petitioner, and that the verdict of the jury upon the question of total compensation should be treated as a special verdict, leaving the question of the distribution thereof to be determined by the court. The parties to the appeal, as has already appeared, claimed undivided interests in the land subject to the life estate of Mrs. Keyes, except that the appellants here claim to be the sole owners, share and share alike, to the exclusion of the respondents, other than the petitioner, the corporation. At the trial upon the appeal all the appellants were required to join, and the appellants Hamilton and Wilson, who united in their appeal, excepted to such ruling, and were denied a separate trial, but were separately allowed the usual number of challenges, and full opportunity to submit their evidence on the question of damages in connection with that of the other appellants, all of which evidence must be deemed to have been relevant and material. Under the stipulation referred to, the course adopted by the court seems to us to have been eminently proper, and the procedure is to be approved. There was certainly no prejudicial error therein. Since the life tenant, Mrs. Keyes, is not a party to this appeal, there are no other assignments of error which it is necessary to consider.

Judgment affirmed.

Mitchell, J., took no part.

(Opinion published 52 N. W. Rep. 1079.)