[ocr errors]

[4, 5] The object of a notice of sale is to lnform the public of the nature and condition of the property to be sold, and of the time, place, and terms of sale. Such notices are given for the purpose of securing bidders, and to prevent a sacrifice of the property. This is for the benefit and protection of the owner. There is no question but that the party for whose benefit the notice is given may waive the omission to give notice or defects therein. If the objects to be gained by giving notice are attained, immaterial errors and defects will not affect the sufficiency of the notice. In Mowry v. Sanborn, 68 N. Y. 153, where a notice of sale by mistake was dated April 23, 1858, instead of 1868, the court held that the mistake was obvious on inspection and did not invalidate the sale. See, also, Gray v. Shaw, 14 Mo. 341.

[6] Where the terms of the sale or the notice given are such as the court had authority to direct in the decree ordering the property sold, the confirmation of the sale by the court cures any irregularities in the terms of the sale as made or in the notice of sale. Robertson v. Smith, 94 Va. 250, 26 S. E. 579, 64 Am. St. Rep. 723. To the same effect see Thompson v. Burge, 60 Kan. 549, 57 Pac. 110, 72 Am. St. Rep. 369; Watson v. Tromble, 33 Neb. 450, 50 N. W. 331, 29 Am. St. Rep. 492; Hanks v. Neal, 44 Miss. 212; Moffitt v. Moffitt, 69 Ill. 641; Little v. Sinnett, 7 Iowa, 324; Friedman v. Shamblin, 117 Ala. 454, 23 South. 821.

[7] Where the mistake in the notice as to the date of the sale is not such as to mislead the public, it is immaterial and of no effect. This is especially true where the mistake is obvious on inspection. In Neff v. Elder, 84 Ark. 277, 105 S. W. 260, 120 Am. St. Rep. 67, it was held that the naming of the date of sale in the notice thereof as June 1, 1893, instead of 1903, was a trivial irregularity which would mislead no one, and was cured by the confirmation of the sale.

In Nevada Nickel Syndicate v. National Nickel Co. (C. C.) 103 Fed. 391, the sale was made under a statute which provided that no such sale should be had without previous publication of notice once a week for at least four weeks. The court in its decree directed that notice of sale be posted and published 20 days. It was there held that the defect was cured by confirmation after notice to the defendant, the court in the course of its opinion saying:

“A judicial sale is one made as a result of judicial proceedings by a person legally appointed by the court for that purpose. It is a sale made pendente lite. The court is the vendor, and the person appointed to make the sale is the mere agent of the court. The sale is not absolute until confirmed. The order of confirmation gives the judicial sanction of the court, and when made it relates back to the time of sale, and cures all defects and irregularities, except those founded in want of jurisdiction or in fraud. The court has power

to confirm the sale, although the terms of the decree may not have been strictly followed.”

In Rounsaville v. Hazen, 33 Kan. 71, 5 Pac. 422, the notice of sale was published in a Weekly newspaper on March 30, April 20, and April 27, for a sale which was to take place April 29. The notice was not published April 6 or April 13. The court, while holding the omission was such as would have been sufficient ground for vacating the sale on proper motion before its confirmation said:

“But we do not think the omission renders the sale void, or that it may be treated as void in any collateral proceedings or upon any collateral attack.”

So in Conley v. Redwine, 109 Ga. 640, 35 S. E. 92, where the sale was not properly advertised, for the reason that there were not four insertions in four consecutive weeks as required by statute. It was held the defect was an irregularity that did not render the sale void. See, also, Doe v. Jackson, 51 Ala. 514; Berlin v. Melhorn, 75 Va. 639; Neligh v. Keene, 16 Neb. 407, 20 N. W. 277; Horton v. Bassett, 16 R. I. 419, 16 Atl. 715. [8] Appellant has failed to point to any person who might take advantage of the alleged defect. This leads us to ask who could raise any objection to the sale as made and approved by the court? No creditor has made any objection. Indeed we know of no ground upon which a creditor could attack this sale or appellant's title derived through such sale. The only persons who would have any right to attack the sale because of defects in the notice of sale would be the heirs of the decedent, and they by their warranty deed, which they delivered to the administrator to be delivered to appellant would effectually be a bar to any action by them to set aside and vacate the sale. If it be conceded that the notice of sale was defective, the heirs of decedent are not only barred from attacking the sale by their deed, but they are parties to this appeal, and are here insisting that the action of the court in refusing to set aside the order approving the sale be in all things affirmed. See Rice v. Cleghorn, 21 Ind. 84. [9] Appellant offered to prove by the regular judge of the trial court that he was not informed appellant was objecting to completing the contract of sale, and that if he had known of appellant's objection he would not have approved the report of sale at that time. The refusal to permit appellant to prove these facts by the regular judge is assigned as one of the reasons for a new trial. The offer to prove that the judge, if he had known appellant was objecting to the title, “would not at the time he took action upon the report have approved the same,” if it had been sustained and the witness had so testified, would not have changed the result. The only inference that could have been drawn from such testimony would have been that the court would have postponed action upon the report until appellant had been given an opportunity to present any objection he might have had to the approval of the report of sale. The refusal to admit this evidence, even if erroneous, would not amount to reversible error. The same is true of the other evidence offered. There was no error in overruling the motion for a new trial. J udgment affirmed.

JUDY et al. v. TROLLINGER et al. (No. 18112.)

(Supreme Court of Ohio. May 27, 1924.)

(Syllabus by Editorial Staff.)

1. Constitutional law 3-93 (1)–Life estates <>2—Act authorizing sale of life and entailed estates valid. Gen. Code, §§ 11925–11935, authorizing sale of life and entailed estates, held not to violate Const. art. 1, § 19, providing that private property shall be inviolate, but subservient to public welfare.

2. Constitutional law 3-190—Act authorizing sale of life and entailed estates not retroactive, as applied to will executed before its passage. Gen. Code, §§ 11925–11935, authorizing sale of life and entailed estates, does not violate Const. art. 2, § 28, against retroactive laws, as applied to will executed before passage of act.

3. Judgment 3-686—Descendant born after sale of life estate held bound under doctrine of virtual representation. Sale under Gen. Code, §§ 11925–11935, authorizing sale of life and entailed estates, held valid as to granddaughter of testator not born until after sale; she being bound under doctrine of virtual representation.

4. Evidence G-82—Guardian, waiving notice and entering appearance in proceedings to sell life estate, presumed to have acted only for his wards. In sale of life estate, under Gen. Code, §§ 11925–11935, authorizing sale of life and entailed estates, where decree was entered, it will be presumed that guardian, joined as such, only acted for his wards in waiving notice and entering appearance.

5. Infants 6-78 (5)—Guardian ad litem unnecessary in sale of life estate under entailed Statute. Where petition to sell life estate, under Gen. Code, §§ 11925–11935, was not contested, appointment of guardian ad litem for infant defendants was unnecessary, under the direct provisions of Swan & C. Rev. St. c. 43, p. 500, § 127. 6. Pleading 3-176—Reply denying receipt of money in judicial sale held demurrable.

Where, in partition, defendant set up sale of land under Gen. Code, §§ 11925–11935, au

thorizing sale of life and entailed estates, reply denying that adverse parties had receipted for or received money from sheriff in such case held not good as against demurrer.

Error to Court of Appeals, Greene County.

Action by Olevia May Judy and others against James Trollinger and others, with cross-petition by the defendant named. A judgment dismissing the petition on demurrer, and for cross-petitioner, was affirmed by the Court of Appeals, and plaintiffs bring error. Affirmed.—[By Editorial Staff.]

This was an action begun by Olevia May Judy to partition certain land in Greene county, Ohio. She claimed to derive her right to the said land as granddaughter of one Isaac Wilson, former owner of the said real estate. Upon June 7, 1858, the said Isaac Wilson made a will touching the said land. Item No. 11 of the will was as follows:

“I give and devise and bequeath to my son, Isaac Wilson, the southeast quarter of section No. 8, township No. 3 and range No. 8, between the Miami rivers, being the same tract described in a patent granted to me dated January 22nd, 1828, to have and to hold the said land unto the said Isaac Wilson for and during his natural life and to his heirs in fee simple forever.”

On October 23, 1858, Isaac Wilson made the following codicil to his will: “I do hereby give and devise to my daughter, Martha Judy, wife of Joshua Judy, the tract of land in item 11 of said will mentioned and devised to my son Isaac Wilson, now deceased, in lieu of and instead of the tract of land and house and lot in item 9 of said will mentioned and devised to her, to have and to hold said tract of land herein devised to the said Martha Judy in the same manner and subject to the same conditions and incumbrances that the said Isaac Wilson deceased, might have held the same under item 11 of said will.”

The land referred to in the will and in the codicil is the same land described in the petition. On April 4, 1859, five months after the execution of this will, the General Assembly passed the act relating to and authorizing the sale of life and entailed estates. This act became effective on April 4, 1859, and is found in 56 Ohio Laws, p. 154, and in Swan & Critchfield's Statutes, vol. 1, pp. 550, 551, and 552. The act was section 5S03, Revised Statutes, and is now sections 11925 to 11935, General Code. Upon March 30, 1864, the second amendatory act was passed. See 61 O. L. p. 80. On April 13, 1865, the third act was passed. See 62 O. L. p. 184. The testator died on April 10, 1860, after the act of April 4, 1859, was in full force and effect. At his death he owned the land referred to in the will, codicil, and petition. On April 17, 1860, more than one year after the Entailment Act was passed, the will was probated. Martha Judy went into possession of the land as life tenant under the will and codicil. Upon November 12, 1869, she commenced an action in the common pleas court of Greene county, under the act of April 4, 1859, above mentioned, and under the amendatory acts, to sell the life estate and reinvest the funds as provided by law. At the time Martha Judy commenced the action for sale of the said real estate she had nine living children, to wit, Kossuth Judy, aged 17; Florence A. Judy, aged 15; Henry C. Judy, aged 14; Ohio B. Judy, aged 12; Wilson L. Judy, aged 10; Mary E. Judy, aged 7; Uriah B. Judy, aged 6; Oliver C. Judy, aged 4; Frank W. Judy, aged 2. One Samuel H. Judy was appointed guardian of all these minor children by the probate court of Darke county, Ohio, on December 3, 1869. In the action for sale of the said real estate each and every one of Martha Judy's children was made party defendant, their names appearing in the caption of the petition. Samuel H. Judy was also made defendant as guardian. Upon December 6, 1869, Samuel H. Judy, as such guardian, filed an answer waiving the service of notice of the pendency and prayer of the petition and entered his appearance therein. In the answer the guardian consented to the sale of the life estate. A judgment was rendered, ordering the sale of the life estate, an order of sale issued, a master commissioner was appointed to make sale, and the land was sold at public auction to one Uriah Wilson. A deed by order of the court was made to him, “free and clear of all entailment or limitation over,” and the master commissioner was ordered to reinvest the proceeds as required by law. Uriah Wilson, the purchaser, in 1871, conveyed the land to one Philip Markley by warranty deed; Markley by like deed conveyed in 1874 to Abraham Brake; Brake by like deed on February 15, 1892, conveyed to A. L. Shuey; and Shuey by like deed on August 27, 1902, conveyed to defendant in error, James Trollinger, who has ever since been and now is still in possession. William H. Wilson, the master commissioner, was removed on February 7, 1882. and one D. P. Irwin was appointed his successor. Some litigation arose between Ir"vin and his predecessor master commissioner to recover the funds; the funds were fully recovered, and the court wherein they were recovered ordered a small portion of the funds for the recovery and expenses thereto.

&=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[ocr errors]

On September 10, 1884, D. P. Irwin, as such master commissioner, was ordered by the court of common pleas of Greene county, Ohio, to reinvest the funds and proceeds in certain real estate in Darke county, Ohio. This he did on September 17, 1884, taking title thereto “to Martha Judy for life and at her death to her heirs in fee simple,” as provided in the will and codicil, and the Entailment Act and order of court. In the meantime the only plaintiff below, Olevia May Judy, was born in 1872. Some time prior to November 24, 1896, Oliver Judy, a child of Martha Judy, and a plaintiff in error here, bought from his mother her life estate in the 80 acres in Darke county. Upon November 24, 1886, Oliver Judy commenced a partition proceeding to partition the Darke county land, in the court of common pleas of Darke county. This land, which was the same land purchased from the proceeds of the sale of the Greene county land, was regularly sold in partition at public sale. Martha Judy, the life tenant, died in 1910. In the present partition action in the court of common pleas, Oliver C. Judy, Henry C. Judy, Frank W. Judy, Uriah B. Judy, Florence A. Martin, Mary E. Stevens, Ohio Belle Shaner, Wilson L. Judy, Mearly Burgoon, Forest Judy, Wesley Judy, Mabel Smalley, Hazel Oplinger, Bonnie Pappa, Myrtle Mendenaull, and Frederick Smalley, defendants, admitted the ownership, title, and interest of the plaintiff in the said premises described in the petition. * The defendant James Trollinger filed an answer and cross-petition. The answer comprised three defenses, first of which was a general denial. The second defense set up the proceedings in Greene county for the sale of the premises in 1860 as a bar to the action. The third defense incorporated the allegations of the second defense, set up the facts concerning the investment of the funds received from the sale of the Greene county property in a tract of land in Darke county, the partition of the said Darke county land, and averred that each of the plaintiffs and defendants in the action other than Trollinger had receipted upon the partition docket in the sheriff's Office of Darke county for his respective share from the proceeds of the said real estate. In his cross-petition Trollinger alleged that he was the owner of and in possession of the real estate described in the petition, being the owner in fee simple therein, alleged that the plaintiff and the other defendants in the action claim interests adverse to himself, and prayed that his title be forever quieted against the same. A demurrer was filed on behalf of Olevia May Judy and the other defendants, except Trollinger, to the second and third defenses in Trollinger's answer, and also to Trollinger's cross-petition. This demurrer was overruled. The plaintiff and all defendants in the action except Trollinger then filed a reply, admitting the facts set forth in Trollinger's answer with regard to the sale of the Greene county property under court decree, and not denying the allegation that all of the defendants in this Greene county action, except Trollinger, were notified of the applica. tion for the said sale, but denied that the court had jurisdiction of the subject-matter of the action, upon the ground that the law under which the sale of 1860 was executed was unconstitutional. The reply also denied the regularity and validity of the sale proceedings in the Greene county case. In the reply to the third defense of the answer the plaintiff and all defendants except Trollinger denied that any of them had receipted for or received any money from the sheriff of Darke county in the second partition case, and denied the right of Trollinger to have his title to the said land quieted, on the ground that the act of 1859 of the General Assembly was retroactive and invalid. Demurrer was filed by Trollinger to the reply of plaintiff, on the ground that it did not constitute a defense to the answer. The court of common pleas sustained the demurrer, dismissed the petition, and rendered judgment for Trollinger on his cross

petition. The judgment was affirmed in the Court of Appeals. Error was prosecuted to this court.

Philetus Smith, of Toledo, C. H. Kyle, of Xenia, and W H. McLellan, Jr., of Toledo, for plaintiffs in error.

Marcus Shoup, of Xenia, for defendant in error.

PER CURIAM. Plaintiff in error challenges the judgment of the Court of Appeals upon the ground, first, that the act of 1859 under which the sale of the Greene county property was made was invalid and unconstitutional, as being in conflict with section 19, article 1, and section 28, article 2, of the Ohio Constitution. These provisions of the Constitution, in so far as pertinent, read as follows:

Section 19, article 1: “Private property shall ever be held inviolate, but subservient to the public welfare. * * * *

Section 28, article 2: “The General Assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts. * * * *

Plaintiff in error's contention is that the Legislature could not, by any act passed after the will was made, affect the execution of the provisions of Isaac Wilson's will. He claims that the Legislature has no authority to destroy the right of Isaac Wilson to have the

provisions of his will executed as he wrote them, and that such is the result if this law is upheld. The constitutionality of the act, however, has been sustained. Nimmons v. Westfall, 33 Ohio St. 213; Oyler v. Scanlan, 33 Ohio St. 308; Bennett v. Fleming, 105 Ohio St. 352, at page 363, 137 N. E. 900. Exactly the same question was raised in the first two of the above cases, namely, that this law was retroactive, and hence violated the above-quoted sections of the Constitution. The case of Nimmons v. Westfall, supra, held in section 7 of the syllabus:

“The act of April 4, 1859 (S. & C. 550), and the supplemental acts of March 30, 1864 (S. & S. 346), and April 13, 1865 (S. & S. 347), in so far as they affect and apply to estates created subsequent to their passage, are not in contravention of section 19, of article 1, of the Constitution of this state.”

Oyler v. Scanlan, supra, held in the second paragraph of the syllabus:

“2. The act of April 4, 1859 (S. & C. 550), and acts amendatory thereto of March 30, 1864, and April 13, 1865, are not unconstitutional as to estates vesting after the passage of those acts.”

[1, 2] It is true that each of the wills in the Nimmons and Oyler Cases was executed after the passage of the act and not, as Isaac Wilson's before the passage of the act; but we fail to see that this affects the problem, inasmuch as the will speaks, not from the time of execution, but from the time of the death of the testator. 28 Ruling Case Law, p. 283, § 255; Oyler v. Scanlan, 33 Ohio St. 308, at page 311; Baker v. Baker, 51 Ohio St. 217, at page 222, 37 N. E. 125. Isaac Wilson died upon April 10, 1860, after the act in question was in full force and effect.

[3] Plaintiffs in error maintain, secondly, that the sale in question could not bind Olevia May Judy, since she was not born in 1869. However, she was bound by the proceedings in Greene county under the doctrine of virtual representation. Bennett v. Fleming, 105 Ohio St. 352, 137 N. E. 900. The second paragraph of the syllabus of the Bennett Case is as follows:

“Persons having a remote, contingent, or expectant interest in realty are bound by the judgment rendered in an action concerning the property, although not made parties to the suit, if the holder of the first estate of inheritance is a party Estates limited over to persons not in being are represented by the living owner of the first estate of inheritance, so that a decree in a suit to which the first holder, a living person, is made a party, will conclude the rights of after-born remaindermen.”

Plaintiffs in error next contend that the sale of the Greene county land was irregular, upon the ground that the law as to service upon the minors was not complied with.

[ocr errors][merged small]

“The same notice shall be given to defendants of the application for the sale as now is or may hereafter be required in cases of petitions of administrators for authority to sell real estate for the payment of debts.”

Examining the provision then in force as to notice required to be given to defendants in a suit by an administrator to sell real estate for the payment of debts (1 Swan & Critchfield's Revised Statutes of Ohio, p. 590), we find:

“Notice in writing of the petition, and of the time and place of hearing the same, or subpoenas in chancery, shall be served as in chancery, upon the defendants whose names and places of residence are known and who reside in this state, at least fourteen days before the court shall make an order for the sale of the real estate mentioned in the petition: Provided, that if all persons interested signify, in writing, their assent to such sale, the notice and subpoena may be dispensed with. Testamentary guardians, and guardians appointed by the court, may assent, in the place of their wards, to the sale.”

In this case all persons interested assented to the sale.

This provision is again emphasized by section 4 of the original Entailment Act (S. & C. § 550), which reads as follows:

“All parties in interest may appear voluntarily and consent in writing to such sale, and testamentary guardians and guardians appointed by the court of probate, may assent, in the place of their wards, to the sale.”

The record shows that Samuel Judy, guardian, appointed by the probate court, filed his formal consent to the sale. Hence, when Samuel Judy waived notice and gave his consent to the sale, he acted under the plain authority of the statute.

The plaintiffs in error contend that Samuel Judy, when he filed his waiver of notice and entered his appearance, did not in terms waive notice upon his wards nor enter appearance for them. This contention is borne out by the record, the answer of Samuel Judy, guardian, in the pertinent part reading as follows:

“And now comes the said Samuel H. Judy, defendant, and, waiving the service of notice of the pendency and prayer of the petition of said Joshua Judy and Martha J. Judy, plaintiffs, hereby enters his appearance to said petition, and for answer thereto says it is true, as alleged in said petition, that he is the duly appointed and qualified guardian of the estates of each and all of his codefendants, to wit, the said Kossuth Judy, Florence A. Judy, Henry C. Judy, Ohio Belle Judy, Wilson L. Judy, Mary E. Judy, Uriah B. Judy, Oliver C.

Judy, and Frank W. Judy; that a sale of said premises would be for the benefit of the said Martha J. Judy, and will do no injury to the devisees in remainder, his wards aforesaid, and he as such guardian for and in behalf of each and all of his said wards hereby consents to the sale of the real estate in the petition described as therein prayed.”

[4] If Samuel Judy were in this case in any other capacity than that of guardian, if, for instance, he were defendant in his own interest, this objection might have some weight; however, he is joined as a party as guardian only, and enters his appearance as guardian only. The record as a whole shows that the case proceeded upon the specific theory that Samuel H. Judy was acting on behalf of his wards as guardian. The objection at best is purely technical. A decree was entered, and the decree of the court is presumed to be based upon the finding of all facts necessary to the validity of the decree. State, on Complaint of Cook, v. Cook, 66 Ohio St. 566, 64 N. E. 567, 58 L. R. A. 625; Bly v. Smith, Sheriff, 94 Ohio St. 110, 113 N. E. 659. In this case the court issued the decree, and hence it is presumed that Samuel Judy acted for his wards in waiving notice and entering appearance. Moreover, the reply does not deny that the wards received due notice.

We hold, therefore, that the sale of the Greene county land was regular according to the law in force in 1869.

[5] Plaintiffs in error further attack the proceedings on the ground that no guardian ad litem was appointed. However, section 127 of the original Entailment Acts, Swan & Critchfield's Statutes, c. 43, p. 590, provides as follows:

“It shall not be necessary, unless the petition is contested, to appoint guardians ad litem for the infant defendants; and no such guardian shall have authority to waive notice or service of subpoena.”

The petition was not contested in the Greene county case. Plaintiff in error next claims that the master commissioner appointed to effect the sale and Uriah Wilson, who bought the property, were both ineligible, because they happened to be executors of Isaac Wilson. This contention is disposed of by the fact that the record does not show that either William H. Wilson, who was first appointed master commissioner, or Uriah Wilson, who succeeded William H. Wilson, was an executor of Isaac Wilson. [6] The answer of Trollinger set up as a third defense the fact that these defendants had receipted for their respective shares from the proceeds of the real estate in Darke county, which was bought with the proceeds of the sale of the land in Greene county. In reply the plaintiff and the other defendants, except Trollinger, deny that any or either of them receipted for or received any

« ForrigeFortsett »