Duncan research files of
Fountain Co. IN Recorders Books (from Onda Harris 5/1983)
Herculeus Dunkin, Oct. 19, 1826
John W. Duncan, Oct. 19, 1826
David Duncan, Nov. 6, 1828 (her line)
Daniel Duncan, Nov. 6, 1828
Joseph Duncan, Oct. 19, 1826
"Reports of cases argued and determined in the Supreme court of judicature of the state of Indiana, cases from 15 Nov. 1854 to end of May term 1855" ("Indiana : Blackford Reports") by Isaac Blackford, A.M., one of the judges of the Court; Vol.6, pgs.278 to 280 (California State Law Library, Sacramento, 12/2003)
CROCKER v. DUNCAN; Supreme Court of Judicature of Indiana, Indianapolis; 6 Blackf. 278; December 6, 1842, Decided.
Error to the Fountain Circuit Court.
DEWEY, J. -- During the March term, 1841, of the Fountain Circuit Court, and on the 18th day of March, Crocker made his affidavit, setting forth that, on the 16th day of that month, "during the sitting of the Court," he was arrested by the sheriff upon a capias ad respondendum issued from that Court in favour of Duncan, and that he was then (on the 18th) held in custody by virtue of the arrest; that he was defendant in a cause in which one Putnam was plaintiff, then pending in Court, and he wished then (on the 18th) to attend to said cause. He further deposed, that he had on that day, while attending to his cause with Putnam, been arrested by virtue of a writ of ne exeat in favour of Duncan; wherefore, he moved the Court to discharge him from the custody of the sheriff. The motion was overruled.
A party to a suit is privileged from arrest on civil process, while going to, attending, and returning from Court; and if his privilege be violated, he is entitled to be discharged from custody by habeas corpus, or upon motion, before the Court whence the process issued. But we do not think the affidavit discloses enough to bring Crocker within the provisions of the statute, as respects the first arrest. He states, indeed, that he was arrested during the sitting of the Court; but he does not show at what place, or that the arrest took place while he was attending, going to, or returning from Court. This was necessary to entitle him to the privilege granted by the statute. He says, that two days after he was arrested he wished to attend to his business in Court, but that is not enough. The affidavit may be sufficient to entitle him to a discharge from custody under the ne exeat, for he shows he was arrested on that, while attending to his business in Court. But the motion was to discharge him entirely from custody. It was properly overruled, on account of the insufficiency of the affidavit as to the first arrest.
Per Curiam. -- The judgment is affirmed with costs.
"Reports of cases argued and determined in the Supreme court of judicature of the state of Indiana, cases from 15 Nov. 1854 to end of May term 1855" ("Indiana : Blackford Reports") by Isaac Blackford, A.M., one of the judges of the Court; Vol.6, pgs.535 to 536 (California State Law Library, Sacramento, 12/2003)
CROCKER v. DUNKIN; Supreme Court of Judicature of Indiana, Indianapolis; 6 Blackf. 535; December 7, 1843, Decided.
Error to the Fountain Circuit Court.
SULLIVAN, J. -- The complainant in the Court below, Dunkin, on bill filed, sued out a writ of ne exeat against Crocker, by which, among other things, the sheriff was commanded to summon the defendant to appear before the judges of the Fountain Circuit Court, on the first day of the next term of said Court to be holden at, &c., on the third Monday of September, 1841, to answer, &c. The bill was filed and the writ issued on the 17th of March, 1841. The session of the Fountain Circuit Court, next after issuing the writ of ne exeat, was required by law to be held on the Monday next succeeding the Court in the county of Warren, that is, on the second Monday of September, 1841. The Court, accordingly, was opened on that day, and on the first day of the term, Chandler, as amicus curiae, moved the Court to quash the writ, because it was not made returnable to the first day of the term next after it issued; but the Court overruled the motion. The defendant not answering, a decree pro confesso was entered against him.
Several errors are relied upon for the reversal of the judgment, but the only one that can avail the plaintiff in error is the refusal of the Court to quash the writ. The statute requires all writs to be made returnable to the first day of the term next after they are issued. The writ in this case was made returnable to a day beyond the next term. A term thus intervened between the teste and the return day of the writ, and in such case it has been held that the writ is void. The Court, therefore, should have sustained the motion to quash the writ.
Per Curiam. -- The judgment is reversed with costs. Cause remanded, &c.
"Reports of cases argued and determined in the Supreme Court of Judicature of the state of Indiana, containing cases from 15 November 1854 to end of May term 1855" ("Indiana Reports") by Albert G. Porter A.M., Vol.6, pg.28 to 29 (California State Law Library, Sacramento, 12/2003)
DUNCAN and Others v. DUNCAN and Others; Supreme Court of Indiana; 6 Ind. 23 ; December 14, 1854, Filed.
Error to the Fountain Circuit Court.
Per Curiam. -- Bill in chancery, filed in the Probate Court of Fountain county, by the defendants in error against the plaintiffs. The object of the suit was to contest the validity of a certain instrument, purporting to be the last will of one Joshua Duncan, deceased. The defendants below answered the bill; whereupon the Court directed an issue of devisavit vel non. That issue was submitted to a jury, and a verdict was given for the complainants. A decree was rendered in accordance with the verdict. The defendants below removed the cause, by writ of error, to the Fountain Circuit Court, which Court affirmed said decree. The record before us was issued on the 10th of November, 1852, and filed here on the 8th of April, 1853. It is contended that this Court has no jurisdiction of the case.
An act approved January 12, 1850, allowed causes which originated in the Probate Courts, to be taken by appeal or writ of error from the Circuit Courts to the Supreme Court. But when this record was issued and filed, the Probate Court was not in existence, nor was the act just cited in force. That Court had been superseded by a statute which was published and circulated throughout the state prior to the 1st day of October, 1852, entitled "An act to establish Courts of Common Pleas," &c. The latter act contains these provisions: Section 13. "An appeal shall lie from such Court of Common Pleas, in all cases, to the Circuit or Supreme Court, at the option of the party applying therefor." Section 43. "All laws and parts of laws contravening the provisions of this act, are hereby repealed from and after the 1st day of October, 1852." The above-quoted act of 1850 evidently contravened the former section, and was, therefore, repealed by the latter section. There was, then, at the time the present record was issued, and this case brought here, no law authorizing causes which originated in the Probate Court or Court of Common Pleas to be taken by appeal, or writ of error, from the Circuit to the Supreme Court. In support of this view, there are two adjudications of this Court upon a statutory provision similar to the above-recited 13th section. The writ of error is dismissed with costs. Filed, Dec. 14, 1854.
"Reports of cases argued and determined in the Supreme Court of Judicature of the State of Indiana" cases decided at November term 1872 not published in Vol.XL, and cases decided at May term 1873; by James B. Black; Indiana Reports, Vol.41, pgs.515 to 526 (California State Law Library, Sacramento, 2/2004)
WORTHINGTON v. DUNKIN; Supreme Court of Indiana; 41 Ind. 515; May Term, 1873, Decided.
APPEAL from the Fountain Circuit Court.
[opinion] Worden, J. -- This was an action by the appellant against the appellee Sarah Dunkin to recover possession of, and quiet the title to, a certain tract of land. The other appellee, Van Meter, asked, and was permitted, to be made a defendant in the action on the ground that he had sold the land to said Sarah Dunkin, and had made her a warranty deed therefor.
Issue, trial by the court, finding and judgment for the defendants, a new trial being denied to the plaintiff.
The following are the facts in the cause:
George Worthington, the grandfather of the plaintiff, died, seized of the land in controversy, in the year 1834. By the last will of said George, he devised all his real estate in Fountain county, including that in controversy, to his wife, Lydia Worthington, during her natural life. After her death, the tract in controversy was to go to his son, William Worthington, during his natural life, and after his death, the remainder was to go in fee to the appellant, the son of said William Worthington. The devisees were all in being at the death of the testator. Lydia Worthington is dead, but when she died does not appear. William survived her, and died in 1868. On the 15th of December, 1849, William Worthington, together with his wife, for the consideration of one thousand dollars, as stated in the deed, conveyed all their right and title to the premises to James McDonald and James Spears. On the 20th of May, 1850, William Worthington, as the guardian of his son, Thomas M., the appellant, for the consideration of five hundred dollars, executed a conveyance of all the right, title, and interest of the said Thomas M. in and to the premises to said James McDonald and James Spears. The proceedings of the court authorizing the sale by the guardian will be stated and considered hereafter.
On the 17th of August, 1850, McDonald and Spears, with their wives, executed a warranty deed for the premises, for the consideration of one thousand five hundred dollars, to Joseph Dunkin. Joseph Dunkin, on the 13th of September, 1850, for the consideration of one thousand five hundred dollars, conveyed and warranted the land to said Harrison Van Meter, and on the 28th of February, 1866, the said Van Meter, for the consideration of six thousand dollars, conveyed and warranted the land to the appellee Sarah Dunkin.
If the guardian's deed enures effectually to the benefit of the appellee, then her title is complete and perfect. Otherwise the appellant is entitled to the land.
There were two proceedings in the probate court of Fountain county by William Worthington as the guardian of his son Thomas M., for the sale of the land. We shall notice the latter only, as we may suppose the latter was resorted to in consequence of supposed defects in the former.
On the 20th of May, 1850, the latter proceedings were commenced. The record shows the following entry:
"William Worthington, guardian for Thomas M. Worthington, v. His said Ward. Be it remembered, that on the 20th day of May, Anno Domini, one thousand eight hundred and fifty, the same being the 7th judicial day of said May term of the probate court, and before the Honorable David Rawles, probate judge, comes now the said guardian, and on motion, files his petition herein, which petition is in the words and figures following, to wit: To the Honorable Court of Fountain county, Indiana. Your petitioner, guardian of the person and estate of Thomas M. Worthington, a minor, would respectfully represent that the said Thomas M. Worthington has a reversionary interest in and to the west half of the south-east quarter of section 12, in town 21 north, and range 7 west; said interest being created by a devise in the last will and testament of George Worthington, deceased, late of said county; and whereas the said interest will not accrue until after the decease of your petitioner, which may be many years hence, and whereas the buildings, fences, etc., are rapidly decaying, your petitioner would therefore pray your honor to grant your petitioner, as aforesaid, power to sell and convey the interest of the said Thomas M. Worthington, as aforesaid, in and to the premises aforesaid, and apply the proceeds thereof to the purchase of real estate, or be placed at interest. The said sale would, in the opinion of your petitioner, be much to the benefit of said Thomas M. Worthington as aforesaid. And your petitioner, as in duty bound, will ever pray, etc. May 20th, 1850. William Worthington, Guardian of said Thomas M. Worthington. Sworn to in open court, May 20th, 1850. J. Ristine, Clerk."
The court thereupon appointed Jesse Marvin and Joseph Poole as appraisers of the property, who were duly sworn in open court as such; and on the same day they returned to the court their appraisement of the property, appraising it at the sum of five hundred dollars. The report of the appraisers, however, although returned and entered of record, does not appear to have been signed by the appraisers. An additional bond with surety was filed by the said guardian, and approved by the court. Thereupon the court ordered the sale, in the following terms: "And the court, being sufficiently advised in the premises, and being satisfied that the interests of the said Thomas M. would be promoted by the sale of his said interest in and to the said lands, order and decree that the guardian sell the said interest of his said ward at private sale, for cash in hand, at not less than two-thirds of the appraised value thereof, and that he report the proceedings herein to this court at the present term."
On the same day, the said guardian made a report to the court, in which report he styled himself a commissioner appointed by the court, and in which he reported that on that day he had sold the property to James D. McDonald and James Spears for five hundred dollars cash in hand, being the highest and best price which he could obtain for the premises. The report was confirmed by the court, and the guardian ordered to execute a deed to the purchasers for the property. On the same day, the guardian executed a deed accordingly, and reported the same to the court, which said deed, "having been seen and inspected by the court," was confirmed.
Several objections are made to the title thus claimed to have been acquired under the proceedings in the probate court, which we will proceed to consider. Before doing so, however, we will notice some statutory provisions in force at the time of the sale in question, and having a bearing upon the questions presented. Sections 110 to 118 inclusive, R. S. 1843, p. 612, provide for the sale of lands of minors by their guardians. Section 110 provides, amongst other things, that, "whenever it shall appear to be necessary for the education of any minor, or for the sustenance of any minor, insane person, or the family of either, that the real estate of such minor or insane person should be sold, or if it should be made to appear to such court that such real estate is suffering unavoidable waste, decay, or injury, or that the value of such real estate can be invested in other property to the manifest advancement of the estate and interest of such minor or insane person, * * * the court, on the application of the guardian, may order the sale of such real estate, or so much thereof as, in the opinion of the court, it would be proper to sell."
The other sections provide for the application for power to sell being filed in writing, verified by the oath of the guardian; the appointment of appraisers by the court, who are to be sworn, and who are to make a return in writing to the court of their appraisement, signed by them; the giving of an additional bond by the guardian, with surety, and the approval thereof by the court; the ordering of the sale by the court; the making of a report to the court of the sale; and the confirmation of the sale by the court and the directing of a conveyance to the purchaser.
At page 458, sec. 27, is found the following provision: "In case any action shall be brought for the recovery of any real estate, sold by any executor, administrator, or guardian, under the direction of any court, or if any other action be brought by which the validity of the sale shall be contested, such action shall not be maintained, nor such sale avoided, on account of any irregularity or defect in the proceedings, if it shall be made satisfactorily to appear, first, that the sale was authorized and directed by a court of competent jurisdiction; second, that the executor, administrator, or guardian, took the oath, and gave bond, as may be required by law; third, that notice of the time and place of sale was given, in the manner prescribed by law; fourth, that the premises were sold accordingly, and are held by one, or under one, who purchased them in good faith."
If the four matters appear that are specified in the provision above quoted, the sale must be held valid. We need not, in this case, decide whether or not a sale could be upheld on general principles, where such matters do not all appear.
The land is held by Sarah Dunkin. She and her grantor, Harrison Van Meter, and his grantor, Joseph Dunkin, were purchasers in good faith. They purchased for a valuable consideration, and there was no evidence given or offered that either of them had any notice of any defect or irregularity in the sale made by the guardian. Sarah Dunkin is, therefore, not only a purchaser in good faith, but she also holds under those who were also purchasers in good faith. She comes within the fourth clause of the section of the statute above quoted.
It is objected that the petition filed by the guardian for an order for the sale of the land was not sufficient to give the court jurisdiction, because it did not sufficiently describe the ward's interest in the land; or if sufficiently described by reference to the will of the testator, the interest was an estate in remainder, and not in reversion as set forth in the petition.
The interest is described in the petition as a "reversionary interest," but it is shown that it was created by the will of George Worthington, deceased, and that it would not accrue to the said ward until after the decease of the said guardian, who we have seen had, by said will, a life estate in the premises. This we think sufficiently shows that the estate of the ward was an estate in remainder, and not in reversion. The mistake in calling his interest a reversionary one is a matter of but little importance, especially as it appeared on the face of the petition that it was an interest in remainder. The order of the court for the sale of the land is broad enough to cover whatever interest the ward had therein, and this consideration is decisive against the objection under consideration. In the language of the statute quoted, "the sale was authorized and directed by a court of competent jurisdiction." The court had jurisdiction over the subject-matter and of the ward, who was represented in the court by his guardian. It had the power to pass upon the sufficiency of the petition. This power to hear and determine is jurisdiction. Dequindre v. Williams, 31 Ind. 444. If a court thus having jurisdiction errs in holding an insufficient petition to be good, it is a mere error, and not a defect of jurisdiction.
Again, it is urged that the petition did not state facts sufficient to authorize the court to direct the sale of the land. What we have said above disposes of this objection.
It is objected that the order of sale was void, because it authorized a private sale at not less than two-thirds of the appraised value of the property, inasmuch as the 118th section of the statute above referred to (R. S. 1843, p. 613) requires that at private sale the property must sell for its appraised value. We have seen, however, that the land was sold for the full appraised value. The appraisers returned their appraisement into court, but it was not signed by them. The failure of the appraisers to sign their appraisement is a defect, as we have seen by the statute above set out, which will not avoid the sale as against purchasers in good faith. But it is insisted that although the property was sold for its appraised value, the order was void because the court had no power to make an order for the private sale of the property for less than its appraised value. We are strongly inclined to the opinion that if there was no law authorizing a private sale for less than the appraised value, the order in question was not void, but simply erroneous, and that under the statute the error would not avoid such sale, as against purchasers in good faith. But we are led to inquire whether the order was erroneous; in other words, whether there was no law that authorized the guardian to sell at private sale for two-thirds of the value of the property. By the 118th section above cited, guardians could not sell at private sale for less than the appraised value. But we find no restriction in the statutes of 1843 upon the power of the guardian to sell at public sale for any sum. He was not required to sell at public sale for two-thirds of the appraised value. If there is any provision therein requiring property sold by a guardian at public sale to bring two-thirds of its value, it has not been pointed out to us, and we have been unable to find it. By the law of 1843, then, a guardian might sell at public sale at any price that he could get, the sale being, of course, subject to the approval or disapproval of the court; but at private sale he could sell only for the appraised value of the property. By the statutes of 1843, executors and administrators could sell land at private sale, but not for less than its appraised value; but in public sales by them the lands could not be sold for less than they could be sold for on execution. R. S. 1843, pp. 529, 530, secs. 233, 239. By an act of 1845 (Acts 1845, p. 17), it was provided, "that when any executor or administrator shall be ordered by any probate court to sell any real estate, it shall be lawful for such executor or administrator to make sale thereof for any sum not less than two-thirds of the appraised value of such estate." And by an act of 1849 (Acts 1849, p. 52), it was provided, that the above act "be and the same is hereby extended to sales made by guardians to minors, idiots, or insane persons, in the same manner as the same applies to sales by executors and administrators." In order to give the latter act any effect at all, it must be held to apply to private sales, because at the time of its passage guardians could sell at public sales for two-thirds or less than two-thirds of the appraised value of the property. We are of opinion, therefore, that the latter act applied to private sales by guardians, and hence that the order of the court, in respect to the point under consideration, was not erroneous.
It is objected that the order did not provide for any notice of the sale, and that the sale was made without notice. It is apparent that no notice of the sale could have been given as the whole proceedings, from the filing of the petition to the confirmation of the sale, took place on the same day. This objection raises the question whether under the statutes of 1843, any notice of the sale was necessary where the sale was private. The two provisions of the statute bearing upon this point (R. S. 1843, p. 613) are as follows: "Sec. 114. Upon such bond being filed and approved by the court, the court shall order the sale of such real estate, providing in the order for reasonable notice of such sale, the credits to be given for the payment of the purchase-money, and the mode of securing the same.
"Sec. 118. Any real estate of such ward may be sold by the guardian at private sale by order of the court, on such terms as the court shall direct; but it shall not be sold for less than the appraised value thereof."
We are of opinion that under these provisions notice was not contemplated in cases of private sales. In the section providing for private sales, nothing is said on the subject of notice, and we think it was the intent that such sales should be made without notice. It is believed to have been the practice, under that statute, in portions of the State at least, if not generally, to make such sales without notice; and to hold now that notice was necessary would be to disturb and unsettle many titles that have heretofore been regarded as valid and indisputable. No notice was required in such case, and the third specification in section 27, before quoted, can only be held applicable to cases where notice is required, as in none other is a notice "prescribed by law."
It is also objected that it does not appear that the guardian took the oath as required by law.
We think as the probate court entertained and granted his petition, we must presume that it was shown to that court that he was a duly appointed and qualified guardian of his said ward. Indeed the court must be deemed to have decided that the guardian had been duly appointed and qualified; otherwise the order could not have been made authorizing him to sell his ward's land. Dequindre v. Williams, supra. We are of opinion, therefore, that it does appear conclusively that the guardian took the necessary oath.
In the introduction of the final record of the proceedings of the probate court, the defendants introduced, as part of the record, the record of the deed from the guardian to the purchasers of the land. This the plaintiff objected to, on the ground that the deed did not constitute any legitimate part of the record, and hence could not be proved by the record. An act passed in 1847 (Acts of 1847, p. 117) requires such deeds to be entered at length upon the final record. Hence the entire record, including the deed, was admissible.
Again, it is objected that the guardian's deed is void because it does not recite at large the time of filing the petition, the order directing the sale, the order confirming the same, and the order directing the conveyance, as required by section 244, R. S. 1843, p. 531.
A later statute, however, provides, "that in all conveyances, assignments, or transfers ordered by any of the probate courts of this State, it shall not be necessary to set forth at large the order of such court directing any sale of real estate, or the order confirming the same, or the order directing such conveyance, assignment, or transfer, but succinct statement of such orders shall be sufficient." Acts 1847, p. 117, sec. 2.
The deed in question fully complies with the provisions of the latter act, and is valid.
None of the objections made to the defendants' title, derived through the guardian's sale of the land, can be sustained.
There remains another question to be considered. On the trial of the cause, and at a proper time, the plaintiff offered to prove that no sale of the land was ever made by the guardian; that his report of the sale and receipt of the purchase-money was untrue; that the transactions set forth in the probate record were the result of a barter and exchange of land by and between William Worthington and James D. McDonald and James Spears, whereby the said Worthington, acting as guardian for plaintiff, had traded and exchanged the plaintiff's interest in the lands in controversy to said McDonald and Spears for other lands, the title to which said William took in his own name, and that said barter thus made was the sole consideration of the attempted transfer of title under the order of the probate court, and that no money was ever paid for said land, or agreed to be paid therefor by the purchasers from the said guardian. This evidence was rejected, on the objection of the defendant, and the plaintiff excepted.
We are of opinion that the evidence was correctly excluded. The probate record showed a sale for cash in hand. Joseph Dunkin, Harrison Van Meter, and Sarah Dunkin must be regarded as purchasers in good faith. They had a right to rely upon the record, unless a knowledge of its falsity was brought home to them. The facts offered to be shown could not affect the title of either, in the absence of notice to them of the facts. There was no offer to prove that either of them had such notice. The evidence, as offered, could not have affected the title of the defendants; hence it was properly rejected.
We have thus considered, we believe, all the grounds relied upon for a reversal of the judgment, and find no error in the record.
The judgment below is affirmed, with costs. (footnote: Petition for a rehearing overruled.)
Buskirk, J., dissents from so much of the above opinion as holds that a notice was not required in a private sale by a guardian under the statute of 1843.
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