IiETTLlllTON 11. MOSIER.
NETTLETON 'V. MOSIER
(lArouit Oourl, D. Minnaola.
In Equity. Demurrer to Bill. S. L. Pierce, for plaintiff. W. J. Hahn and J. C. McClure, fordefendantB. MCCRARY, C. J. This is a suit in chancery, brought for the purpose of setting aside a guardian's deed. The following are the material facts. Section 1, c. 59, Revised Statutes of Minnesota, provides as follows: "The judge of probate in each county, when it appears to him necessary or convenient, may appoint guardians to minors and others, being inhabitants or residents in the same county, and also to such as reside out of the state and have any estate within'the same." The bill avers application was made to the probate court of Goodhue county, Minnesota, for the appointment of a. guardian for Agnes E. Wells, a minor, and 'that in the petio' tion for such appointment it was "fraudulently and falsely stated that the said Agnes E. Wells resided in the county of Goodhue; that, in fact, she did not then and never did reside in said county, neither was she Btn inhabitant thereof," but was then and for many years thereafter a resident and inhabitant of the county of Rice, in the state of ' Upon said petition a guardian for said minor was appointed by the
said probate court of Goodhue county, and by virtue of such appointment the guardian proceeded to sell and convey certain real estate of the said minor. The bill is filed to set aside this conveyance upon the ground that the appointment of the guardian Wl},S absolutely void, and also to remove the cloud from the complainant's title caused by the execution and recording of the guardian's deed. The demurrer raises the question whether the proceedings of the probate court, upon the petition for the appointment" of a guardian for said minor, amount to an adjudication which cannot be attacked in a collateral proceeding. It is said that the probate court of Goodhue county had jurisdiction to entertain the application, and to decide the question of fact as to the residence of the minor, and that, having decided that question, and made the appointment, its judg. ment is conclusive upon the minor and all persons claiming under her. The petition, it, is said, stated the necessary [email protected]
NETTLETON tJ. MOSIER.
nary having jurisdicti'on in such matters appointed another administrator. A judgment was obtained against the latter, upon which execution was issued, and a. sale of real estate had. Everything was regular except the appointment of the second administrator. The sale was attacked collaterally, and upon the ground that the second appointment was void. In delivering the opinion of the court Chief Justice Marshall stated the guiding principle in such cases as follows: "If, under' any circumstances, the ordinary could grant administration during the absence of an executor who has made probate of the will, and legally competent to act, then he would have jurisdiction of the subject, and would judge of these circumstances; but if, in no possible state of things, he could grant Buch administration, it would be difficult to conceive how he can have jurisdiction." Page 26. Most, if not all, the numerous cases in the books upon the subject will, upon examination, be found to harmonize vvith this general rule. The cases are very numerous in which it has been held that an adjudication, however erroneous, and even contrary to fact, cannot be collaterally attacked ; but they are all cases in which the court had possession of the and subject, and was, therefore, empowered to deal decide all questions arising. In:' such cases the court has power over the subject-matter, and that is jurisdiction. Grignon's Lessees v. Astor, 2 How. 319. On the other side of the line was the case of Sheltonv. Tijfin, 6 How. 163, where it was held that a party not served, and whose appearance was entered by an attorney without authority, is a nullity, and may be collaterally impeached. There was nothing in the record to show the want of jurisdiction, but the court held that the want of authority in the attorney might be shown by parol. It only remains to apply this doctrine to the case in hand. The statute is explicit in defining and limiting the power of the probate court. Each probate judge has power to appoint guardians-First, of minors being residents of the same county; second, of minors residing out of the state and having property in the county.
Can any circumstances be imagined under which a probate judge can appoint a guardian for a minor who neither resides in nor owns property in the county? Is not such an appointment the act of a tribunal having no power in the premises? The purpose of the legislature was to limit the jurisdiction of the probate court to the cases specified, and for obvious reasons. If one judge oan make a valid appointment of a guardian for a minor residing in another county of the state, any other probate judge in the state may do the same. The result might be great confusion and conflict, and serious complications concerning titles. Besides, the law always guards oarefully the rights of infants, and it is apparent that the strict enforcement of the statute is necessary to this end. I regard the statute, therefore, as not merely directory; it is imperative, and the residence of the minor within the county was, in the case under consideration, the fact upon the existence of which the power of appointment depended. It is not sufficient, in such a case, that the fact be alleged; it must exist. The power of the probate judge to appoint guardians is statutory, and limited to the county. Weston v. Weston, 14 Johns. 427; Sherman v. Ballou, 8 Cow. 304. It is conceded that the appointment of an administrator of the estate of a person not dead would be void notwithstanding an allegation of his death. I think the appointment of a guardian for a minor whose person and estate are both beyond the jurisdiction of the oourt is equally void, notwithstanding the allegation that the minor is within the jurisdiotion. The defendant further insists that if the guardian's appointment, and the sale and deed, are all void, the plaintiff has an adequate remedy at law in an action of ejectment, and therefore cannot resort to a court of equity for relief. This question did not receive much attention at the hearing, and I am not disposed at present to pass upon it. Whether the bill presents a case in which a party not in possession has a right to resort to equity to remove a cloud upon title, or to cancel and set aside a void deed which has
been placed on record, is animportant question. Story's Eq. Jur. § 700, and cases cited in note a, (11th Ed.) Counsel will be heard further upon this question at the next term.
WILSON, Assignee, v.
D. Missouri. JUly 23, 1880.)
I. BANKRUPTCy-SET-OFF-USURy-REV. ST. § 5073.-Section 6073 of the Revised Statutes, relating to sct-ofis in bankruptcy proceedings,Pro. vides that .. in all cases of mutual debts or mutual credits between the parties the account between shall be stated, and one debt set oft against the other, and the balance only shall be allowed or paid; no set-off shall be allowed in favor of any debtors to the bankrupt of a claim in its nature not provable against the estate, or of a claim pur. chased byor transferred to him after the filing of the petition. Held, that under this section a jUdgment obtained by an assignee in bankruptcy, for a penalty incurred by the violation of a state Iltatute against usury, could not be set-off against & claim of the judgment debtor against the bankrupt estate.
SAME-JURISDICTION OF CIRCUIT COURT-BILL of
REVlRw-REV. B'l'; f 4986.-Under section 4986 of the Revised Statutes the circuit court
has jurisdiction of a bill to set aside an order of the district court directing such offset to be made.
Bill of Review. B. B. Kingsbury, for plaintiff. L. F. Parker, for defendant. MCCRARY, C. J. This is a case growing out of proceedings in the district comt in the matter of William James, bankrupt. The defendant was a creditor of said bankrupt, and proved its claim, which was upon a promissory note amount_ ing, with interest, to $5,000. The note was secured by mortgage, but after exhausting the security there remained a. balance due against the bankrupt's of $2,803. The said note was usurious, and the assignee of said bankrupt, the present plaintiff, recovered judgment against the defendant for the statutory penalty for violating the usury law of Missouri in the sum of $620. This judgment was recovered some-