Emery v. Vroman , 19 Wis. 689 ( 1865 )

By the Court,

Dixoít, O. J.

The sale of the real estate of the ward for his maintenance or education, and the sale of the same property for the payment of his debts, are subjects so nearly identical and so proper to be governed by one course of proceeding, that it is difficult to define the wisdom or utility of two statutes, one for the former and the other for the latter, with such slight changes as are found in chapters 64 and 65 of the Revised Statutes of 1849. The same differences still exist tinder the present revision. R. S., 1858, chaps. 98 and 94. Why, for instance, in the latter case hut not in the former, the proceedings should be examined by the probate judge, and the sale confirmed if he shall find it to have been fairly conducted and the sum bid not disproportionate to the value, bus otherwise rejected ; or why in the former the guardian should be required to take and subscribe the oath before fixing on the time and place of sale, whilst in the latter he may do so at any time before the sale, is not readily perceived upon any ground of reason or justice. Still the law is so written, and where the proceedings are had altogether under one statute or the other, I suppose they must conform to the provisions under which they are taken. In this case, however, they were had partly under both. The sale was in part to maintain and educate the wards, and in part to pay charges against their estate, properly coming under the denomination of debts. In such case, inasmuch as the proceedings cannot be valid in part and in part void, my brethren are of opinion that it is sufficient if they conform to the provisions of the last act, namely, that for the sale of lands for the payment of debts. I must confess that I have some doubt about this, and still I am not prepared to deny its correctness. I agree with them fully that the provisions of the last chapter are much better adapted to guard and protect the interests of the ward ; but I doubt, where there is to be a sale for all purposes, wheth. er the legislature intended that a compliance with these alone should be sufficient. My brethren, however, are clear upon this point, and it becomes unnecessary for me to express an opinion.

Viewing it then as a proceeding under chapter 65, one principal objection, that the oath was not taken before fixing on the time and place of sale, is entirely obviated. The oath prescribed by section 48 was taken and subscribed by the guardian before the sale.

Other objections still remain, but none of them are sufficient, in our judgment, to invalidate the sale.

The bond was filed, but not formally approved. It appears in evidence that the bond then was and still is sufficient. The object of the requirement was to secure the disposition of the proceeds of the sale in the manner prescribed by law. It is not pretended that they have not been faithfully applied and fully accounted for by the guardian. The purchase money having gone to the benefit of the wards, they now sue to recover back the land because the bond was not formally approved. We think they cannot prevail upon any such technical ground. It is at most but a mere informality, not affecting the validity of the sale.

The lands were not sold in the order of the license. This defect, if such it was, was cured by the order of confirmation. The same court from which the order emanated had, in its discretion, the power to modify it, or to dispense with its strict performance in the particular named. This was done by the order of confirmation.

The lands sold were in excess of the sum authorized by the license. Not so with respect to the lots in suit. The license authorized a sale to raise the sum of $1500. Including the lots in suit the bids amounted to but little more than that sum. A fair construction of the order is, that the guardian was authorized to raise that sum exclusive of the expenses of the sale. The expenses amounted to considerably more than the excess at the time these lots were sold.

The appointment of the guardian.was void, because the district court of the territory had no power upon appeal to make it. This objection is answered as well by section 46, p. 319 of the revised statutes of the territory, where the jurisdiction of the district court “ sitting as a court of probate” is expressly recognized, as by what we understand to have been the constant practice of the territorial courts. Great mischief would ensue, and it is too late to revise and overturn the proceedings of the territorial couris upon such questions. The same section of the territorial statutes answers the objection that the bond of the guardian as such was not given to the judge of probate in his official capacity. The statute required it to “ be given to the territory of Wisconsin.”

Judgment affirmed.