Bickel v. Erskine

1. Jurisdiction: sale of infant’s real estate. Where an administratrix had applied for permission to sell real estate, and notice was served upon the guardian of an infant hem, who thereupon made appearance: Held, that the court acquired jurisdiction under which it could order a sale of the property, notwithstanding the guardian did not file an answer. 2. Judgment: judicial sale: purchase by guardian. Where the guardian of an infant heir has become the purchaser of realty sold under an order of the court, to pay the debts of the estate, paying therefor the appraised value, and in an appropriate proceeding his title has been adjudged to be valid, the heir will be eoneluded by this judgment, in the absence of a showing of fraud. 3.--: against infants: fraud. Judgments and decrees against infants, like those against adults, are presumed to be valid and will be sustained unless fraud is affirmatively shown. 4. -: -: vacation OF. The error for which an infant may ask that a judgment be modified, within twelve months after arriving at full age, is not error in fact, but error in law, apparent on the record, such as would be ground for reversal on writ of error at common law, or on appeal under the Code. The infant cannot come in with new evidence or a new defense and have the case tried over again.

Appeal from Scott District Court. This is an action in equity against Andrew Ersldne and Bernhard Boldt, to foreclose a written contract for the sale of real estate. The answer of defendants, among other things, alleges a failure of title to an undivided one-half of the real estate in question. The case was tried by the court and special findings were made, from which the following state of facts appear: 1. The property in question was formerly owmed in fee simple by J. J. Peuner and Gustave Czesh, each owning an undivided one-half. In April, 1867, Czesh died intestate, leaving surviving him his widow, Eleanor Czesh, and Theresa E. Czesh, an infant child about one month old. 2. On the 7th day of May, 1867, said Eleanor was duly appointed administratrix of said deceased’s estate by the County Court of Scott county, and Henry Schleffel was by said court appointed guardian of the estate of said infant Theresa. Said Schleffel was also surety on the administratrix’s bond. 8. On the 24th day of September, 1867, the administratrix filed in said County Court a statement of the claims against said estate, showing the insufficiency of the personal property to pay the debts, and an application to sell the interest of said deceased in said real estate for that purpose. The hearing was fixed for the first Monday in October, 1867, and notice of the same was personally served on said infant and on ber guardian. At the last named date the County Court made an order reciting that personal service had been made on all persons interested, .and that ITenry Schleffel appeared, both in his own behalf and on behalf of his ward, Theresa E. Czesh. The order further recites that the court “ heard the evidence in support of said application, and no one appearing to resist the same, and it appearing that the personal estate is insufficient to pay the debts, the said real estate is ordered to be sold.” 4. Appraisers were duly appointed and appraisement made, and under said order of sale said administratrix sold the interest of the deceased in said real estate to said Henry Schleffel for $2,500, which was its appraised value. The deed was approved March 4, 1868, and recorded the same day. Said Eleanor Czesh did not in said deed convey her one-third interest as widow. 5. At the time of said sale and deed said Schleffel was, and at the time of the trial in the court below still continued to be, the guardian of said Theresa. Schleffel and wife by warranty deed, dated June 15, 1869, and recorded July 7, 1869, conveyed the one undivided half of. said property to Jacob Yogler for $3,400. J. J. Peuner, who owned the other undivided half, about the same time conveyed the same to Yogler. Yogler immediately, and more than five years before the trial in the court below, took possession of the premises and held the same as his own until he delivered possession to Erskine and Boldt on the second day of June, 1873. Yogler paid full value for said property, and had no notice of any rights or equities, if such there were, on the part of said infant Theresa, unless he was affected with constructive notice by the record of the proceedings aforesaid. 6. Eleanor Czesh, widow, by quit claim deed, dated September 30, 1873, conveyed to said. Henry Schleffel all her interest in the undivided half of said real estate of which her husband died seized. . 7. On the 16th day of May, 1873, Yogler and the defendants, Boldt and Erskine, entered into an agreement for the sale by Yogler to Boldt and Erskine of tlie real estate in question for $8,500, of which $100 was paid down, and the balance to lie paid at certain fixed times thereafter. On the 2d day of June, 1873, Yogler delivered possession of said property to Boldt and Erskine without a deed being made to them, and they have ever since remained in the uninterrupted possession of the same. 8. On June 21,1873, Erskine paid to Yogler $3,750 of the purchase money. No further payments have been made, and no rescission of said contract has since been made. In July, 1873, Erskine had the title to said property examined, and made objections thereto, and offered to complete the purchase if the title was made perfect, or to rescind the contract and receive the purchase money paid. 9. On the 10th day of January, 1871, Yogler conveyed said property to Biekel, plaintiff and appellee, subject, however, to all the rights of Boldt and Erskine therein. 10. On the 13th day of November, 1873, Yogler brought suit against said infant Theresa, in the Scott Circuit Court, to quiet bis title tó said property. Original notice in said suit was duly and personally served on said infant on the 12th day of November, 1873. In the petition in said action plaintiff set forth his title to said real estate, described as aforesaid, and averred that, when the order of the County Court was made to the administratrix, Eleanor Czesh, to sell the interest of the estate of Gustave Czesh, deceased, Henry Schleffel, the guardian of said infant, appeared and represented his interest as such guardian, but from an erroneous impression about the necessity of so doing, no answer in writing was entered on the.reeord, yet the said court,-in its consideration of the said matter, did not take the petition as confessed, but required proof of all the material allegations contained in the petition as though an answer had been filed. That the purchase was made by Henry Schleffel for a full price, understanding the same to be regular and legal. That under said sale he went into possession, and that he and his grantees have remained in possession down to the present time, being a period of over five years from the said administratrix’s sale, and prays for a decree quieting his title and forever barring Theresa E. Czesh from ever setting up any claim or title thereto, etc. To the said petition defendant appeared by guardian ad litem, duly appointed, and filed an answer denying the allegations in said petition contained; also alleging' that Sehleffel, who purchased at the sale, was the guardian of defendant and therefore could not purchase. Upon the trial of said cause the court found the allegations of said petition to be true, and adjudged the order of sale and sale thereunder to be legal and valid, and entered judgment accordingly, quieting plaintiff’s title as prayed, the date of which judgment is December 2, 1873. Said Theresa E. Czesh is still living and an infant. No appeal has ever been taken from said judgment nor any proceedings taken to vacate or modify the same nor to obtain a new trial, nor have any proceedings been taken by any party to set aside said administratrix’s sale, nor attacking the validity thereof, or the title obtained thereby. . The plaintiff, Biekel, filed his petition in this action on the 13th day of April, 1874. Upon the foregoing findings of fact the court below found, as a conclusion of law, that there was no defect in the plaintiff’s title, and that he was entitled to have a decree for specific performance against Boldt and Erskine, and in default of such performance decree of foreclosure and sale of defendant’s interest in said property to satisfy the amount due, which decree was accordingly entered, and the defendants excepted and appeal. The County Court cannot render a judgment affecting the right of an infant, without a defense by the guardian. (Bloom v. Burdick, 1 Hill, 130; Schneider v. McFarland, 2 Comst.-, 454; Whitney v. Porter, 23 111., 445.) The purchase of an interest in trust property by one standing in a fiduciary relation, does not invest him with the fee simple therein; he holds it upon a resulting trust to his beneficiary. (Perry on Trusts, § 129.) His grantee is presumed to have had notice of whatever was disclosed in the sale through which he derives title. (Perry on Trusts, § 223; Gallatin v. Cunningham., 8 Cow., 384.) As against a minor cestui que trust, the statute of limitations will not protect a trustee under a resulting trust, in the possession of real property, until one year after the minor attains his majority. ( Geh hard v. Sattler, 40 Iowa, 152.) An infant, in showing cause why a decree should not be made absolute, may show that lie had grounds of defense which were not before the court, or were not insisted upon at the hearing. (1 Dan. Ch’y Pr., 166-7; Ralston v. Lahee, 8 Iowa, 17.) Equity will not compel a person to take a doubtful title, and a title is doubtful when it may be fairly questioned. (1 Hill on Yendors, 210-11.) It is enough that the vendor is in a situation to comply with his contract when he is bound to convey, and is called upon to do so. {Luckett v. Williams, 37 Mo., 388; Goss v. Singleton, 2 Head., 47.) Although at common law a judgment could not be taken against an infant without an appearance by guardian, a violation of the rule was simply error in fact, to correct which the law gave the writ of error coram nohis. {Arnold v. Sand,for el, 14 Johns., 417; Maynard v. Downer, 13 Wend., 575.) An equivalent remedy is provided by our Code. (Secs. 3154, 3157.) The absence of any answer to the bill by the guardian ad litem of an infant defendant does not render the decree even erroneous on direct .appeal therefrom. (Banta v. Calhoun, 2 A. IL Marsh, 166.) While it may be held that a proceeding by a guardian to obtain leave to sell his ward’s land is in personam ( Vanatta v. Lyon, 35 Iowa, 521), yet there is a material difference in the statute respecting administrators’ sales, which would -justify a different conclusion respecting them. (Good v. Norley, 28 ' Iowa, 217.) If one standing in the relation of trustee becomes a .purchaser of trust property at a ■judgment or other sale, he will hold it subject to the equitable, right of the cestui que trust to have it set aside at his election. (Damoue v. Fanning, 2 Johns., 265; Bostwich v. Atleins, 3 N. Y., 53; Sypher v. McHenry, 18 Iowa, 232.) If the guardian purchase property of his ward, his grantee is not affected with constructive notice merely by the existence of the record. (Gallatin v. Cunningham, 8 Cow., 376.) A decree for strict foreclosure must give the infant a day to show cause; but this will not entitle him to unravel the accounts, nor to redeem by paying what is reported to be due, but only to show error in the decree. (Mills v. Dennis, 3 Johns. Ch., 367; Jones v. McAvoy, 31 Cal., 273.) The reversal of the decree could not, by the settled rule of law, prejudice the title of a purchaser in good faith, deriving title from the guardian’s grantee while the decree is in force, and, in the absence of any lis pendens, procure its reversal or vacation. ( Wadhams v. Cay, 7 Chic. Leg. News, 169; McJilton v. Love, 13 111., 494; Horner v. Zimmerman, 45 111., 14; Davis v. Bonar, 15 Iowa, 171; Foulhe v. Zimmerman, 14 Wal., 113.) Where a doubt exists atyrat a title, it is the duty of the court to remove it, and its decision in favor of the title does remove it. (Benley v. Carter, L. R. 4 Ch. 230; Bull v. Hutchins, Id. 7 Ch., 7.)