Bailey v. Scott , 13 Wis. 618 ( 1861 )

By the Court,

PAINE, J.

Tbis action was brought to foreclose a mortgage. TheHefense set up was that it was given to secure half of tbe purchase money of certain land sold by tbe plaintiff to tbe defendant, witb covenants of warranty, and that tbe title to an undivided half of tbe land bad failed, and thereby tbe consideration bad failed.

It appeared on tbe trial that tbe plaintiff’s title to tbis undivided half was derived through an administrator’s sale, which, it seems to have been conceded, was invalid. But an administrator de bonis non was subsequently appointed, who re-sold tbe lands of tbe estate, which were bid off by Whiton as a trustee of tbe creditors, and witb an understanding that be would convey to tbe purchasers at tbe first sale for tbe same price at which be bid it off. Tbe plaintiff, by an agent, applied to Whiton to obtain bis title ’to tbis land, so as to make good bis conveyance to tbe defendant and make good bis interest in this mortgage. Tbe defendant, at about tbe same time, applied to make tbe same purchase. And we are satisfied from tbe evidence, as was found by tbe court below, that Whiton conveyed to tbe defendant, upon an express agreement between tbe three parties, that tbe plaintiff’s rights under tbe mortgage were to be preserved, deducting, however, ffoih tbe amount to be paid on it, tbe amount of tbe consideration paid by tbe defendant to Whi-ton. Tbis was provided for in tbe judgment of tbe court below. And it is not only sustained by tbe agreement of tbe parties, but sucb would bave been tbe rule of damages without any sucb agreement. We beld in tbe case of Hurd vs. Hall, [12 Wis., 112] that when a vendee, witb covenants of warranty, buys in an outstanding title, tbe rule of damages for tbe breach of bis vendor’s covenant, is tbe amount be has paid to perfect bis title. And this case falls exactly within that decision.

But tbe counsel for tbe appellant claims that tbe title was not perfected by tbe purchase from Whiton, for tbe reason that tbe appointment of tbe administrator de bonis non was void. Wells, tbe first administrator, was a non-resident, and neglected to settle tbe estate. An application was made, upon petition setting forth these facts, for tbe appointment of an administrator de bonis non, and an order for bearing made and a notice duly published. On tbe bearing, tbe administrator de bonis non was appointed, and tbe order recited that “whereas the said Jabez R. Wells is not a resident of this state, and has not for more than ten years past made any report of bis doings to this court, and has left said estate unsettled in full, by means whereof tbe granting administration of all and singular tbe goods, chattels and credits of said estate not administered, &c., doth belong to us.” There can be no question that upon tbe facts stated in tbe petition and recited in tbe order, tbe probate court bad full power to remove tbe first administrator, and appoint an administrator de bonis non. But tbe objection made by tbe appellant’s counsel is, that no order was made expressly removing tbe first, but that it was assumed that bis authority was at an end by reason of tbe facts stated. It may be conceded that if sucb order bad been made, tbe proceedings would bave been more accurate and formal, but we think there is nothing in it affecting the jurisdiction. Tbe court adjudges tbe substance of what was necessary, by saying that for reasons authorizing it in law to remove tbe first administrator, tbe power to appoint another bad devolved upon it. Tbe appointment of tbe administrator de bonis non necessarily implies a revocation of tbe authority of tbe first. And where tbe record shows that tbe court has lawful authority to make such revocation and new appointment, and tbe new appointment is made, we tbink it cannot be defeated by tbe absence of a formal entry of sucb Where there is jurisdiction, tbe only way to correct errors or irregularities is by a direct appeal; tbe proceedings cannot be questioned collaterally. This has been too often decided to require reference to authorities.

Tbe appellant’s counsel relied upon tbe recent decision of this court in tbe case of Sitzman vs. Pacquette. But tbe marked difference between that case and this is, that in that, we held that tbe probate court bad no authority in law to appoint an administrator de bonis non on tbe resignation of the first, for tbe reason that tbe first could not resign. Its jurisdiction, therefore, failed. It acted where tbe law bad not authorized it to act. But that is not so here. In this ease tbe court bad full authority to do what it did, upon tbe facts presented in the record, and tbe only objection is that something necessarily implied by its action is not quite distinctly enough expressed. No sucb objection can defeat tbe proceedings of any court when questioned collaterally.

Tbe judgment is affirmed, with costs.