,(f!i'reuit Court, J); Mmnuota.
OF GUARDIAN'S AppOINT.
N , ,', The record, ofa probate court ohhe territory of Mimiilsota, in tlie matter of the appointment of, a guardian, (1)"recited that "on this ;thir,',d ,day of ·Decem'ber, 1856," CltPle A., petitioning fQr his appointment as guardian of his n0Il-' resident minor children, they having real estate in the coqnty; (2) ordered a bond to be filed by him; (3) ordered his 'appointment, (reciting the filing of the petition and bond;) and (4);S8t out a copy of the bond, dated December appear from tp,e record the notice required 6th, .It, mdn,ot tp be given to l/.llpersons interested was given. Hel4 that, the courtbein,\, a court of :record, and notsti-icily one of special and limited jurisdiction, and the manner of notice to interested parties required by the statute being left to its discretion, it must be presumed, as, bearing. upon the validity ,of a subsequent guardian's sale, that proper notice was giye:b,. ' , .
If a guardian's bond is given to the wards instead of to the probate court, the approval of it is merely: an error in a matter of proolldure, and 8,subse, quent sale of the ward'l! not thereby invalidated. '
SAME-FoRM OF BOND-WHETHER DEFECT JURISDICTiONAL. '
, Suit for Partition. , ,'Pierce &: George, fl;>r comp1l:limint$. " Ohas.D: Kerr, .
·, NJjlLSON, This, is 'a:bill ,form fora partition of real propedy-. 'the ,complainants claim an unQivNed one-third of the relll estate de:' scrjbed, and allege that the derl:)ndant' owns the, remaining two-thirds. The defendant ill his claims, he is the oW,ner of ,the entire prop,. 1Jrty.' His title to the one-third rests on a sale by the of.nonrew;dent minors ordered by the probate court of Morrison county, Minne#lota, and made pursuant tp,aucp,license on January 17, 1857,and con:' firmed February 2d following; A deed was executed and delivered to thE;l purchaser, Febr.uary 17th. , .· The complainants'title is traced through Dorothy J. Sturgis, the mother of, Sarah J: Kelley, and through her tlister, and a brother. To sustain the complainants' title, an attack is plade upon the proceedings of the probate court appointirig the guardian, and subsequent proceedings resulting in the sale of the minors' interest in the property., ' The evidence introduced to show the appointment of a guardian is the fQllowing record:
"IN THE MATTER OF THE GUARDIANSIDP OF JENETTE A., SARAH JANE, AND JOHN K. STURGIS.
"December Term, A. D. 1856, of the Probate Court of Morrison County. Minnesota Territory, held at Little Falls by CHESSMAN GOULD, Probate Judge. "Now, on this third day of December, A. D. 1856, comes William Sturgis, of said county and territory, by his petition, and says that he is father of Jenette A., Sarah Jane. and JohnK.,Sturgis, minors; that Jenette A. was twelve years of age on the twent,,-fourth day of November, A. D. 1856; that Sarah Jane was ten years of age on the twentieth of October, A. D. 1856; that both
KELLEY V. M()ltRELL.
are residents, of St. Joseph county, state of Michigan; .John K. Sturgis was six years of age on the twenty-thir!l <lay of March,A. D. 1856, and is a resident of Jobnson county,state of Iowa; that said minorsare seized of cerreal that,to'protect and preserve the l.egal the mmors, it IS necessary that some proper person be appomted guardIan of theIr said estate, and that the said,William Sturgis asks that he be appointed such' guardian. His therefoI'6ordered by the court that the said William Sturgis; be, and he is hereby. required to file in this office hisboJ1d in the penal sum of one tho,usand dollars, with sureties to be approved by the court. On rel}ding and filing the petition of William Sturgis, asking to be guard, ian of the estate of Jenette Sarah Jane, and John K. Sturgis, minors' under the age of fourteen' years, and on reading, filing, and approving the bond executed in due form of law to the said minors by the said William gis, with sufficient security, it is ordered that letters of guardianship of the estate ot the said minorS 'issne to the said William Sturgis, and th!lt he be appointed lltl-Qh guardian aforesaid, accorqing to .theprayer petition. 'l Copy of the bond filed· in thljl probate court by William Sturgis, guardian oftheestate of Jenette:A;, Sarah Jane, and John K. Sturgis: . "Know 'men by pI'esents that we, William Sturgis',' N. Richardson, and T. Smith, are held and firmly bound unto Jenette A. Sturgis, Sarah Jane ohn K.8turgis, minors under the age of fourteen years, in the penal1sum ,of :ope t);H'lQB3n(\ dollars·li\wful United states, to be paid, to the said minors, their executors and administrators or assign!:!, to which payment we4 and,ivulytq be made we bind firmly by these presents. . , "Sealed with our seals and dated this sixth day of December, 1856. ' "The condition of this obligation is such that if the above-bounden William Sturgis shall and will in all things discharge the duties of a guardian of the estate of the said minors according to law,and-rendera true and just account of all moneys and properties received by him, and of the application thereof, and of his guardianship in all respects, to any court having cognizance thereof when thereby required, then'this obligation to be void; else to remain in full force and virtue. . ' . WIL.LIAM STURGIS. .·. "N. RICHARDSON. Seal. "T. M. SMITH. Seal. "Sealed and delivered'in presence of JA!iES HALL and,(}l'msSMA'N GOULD. "Territory of Minnesota, County of MC)1'T;,son-ss.: On this sixth day of December, 1856, appeared before me William Sturgis, N. Richardson, and T. M. Stnith, severally known to illeto be the petsonsdescribed in and who executed foregoing bond, and respectively acknowledged that they execute the . CHESSMAN GOULD, JUdge of Probate." same. . . Also a record is introduced, dated December 24, 1856, of a peti,tion of the guardian to sell the real estate, and the appointment of appraisers, and an order for the sale. It is urged that in the record it does not affirmatively appear that notice required by law was given to all persons interested that an application for the appointment oia guardian would be made, 'and for that reason the subsequent proceedings are void, including the sale. The probate court ofthe territory ofMinnesota had original judlldiction of the appointmentof a guardian, and could direct a guardian's sale. It was not a Gourtof special andlilllited jurisdiction, strictly speaking. It ,was a court in which records are required to be kept of all proceedings. rt was
a court of superior. jurisdiction, and full faith and credit are due to its cifficial·acts, when on the face of them, as much so as are due to the.offidlllac1;S of otherqolirtsof record; and, while in this case the reethe matter of notice of the application for the appointmentof. a. guardian, it. dgeS show the. minors were non-residents, and it appeara in the petition for the sale that they had real estate in Morrison county; and every fair intendment must be made that the court as the law contemplated before it assumed to act. The gave court hitd jurisdiction o( thasubject-matter, and the manrier of notice of the appointment Of guardian was left to its discretion. .The notice is presumed to nave been. given, as the court passed upon the question when the appointment was made. I think the i case of Grignonv. Astor, 2 How. 319, is in point. The ex· ercise of jurisdi6tiori in appointing a guardian warrants the presumption that everything necessary:· Wfl,S done before the court acted. In every other respect there is asub/ltantial compliance with the statutes relating to the sale of . by the guardian. The bond which the statute required to be given to the probate court was given children; but this isa matter of procedure, and, at most, it was an error of judg. ment in the court to approve and accept it, and does not render void the subsequeWt sale. .' It is unnecessary to consider the other questions raised. Decree for deferidallt; ap.d it is so ordered.
TuCK 11. OLDS
w: D. Michigan, S. D.
WATE:RIl A,2q) WATER·OOlrnSES-DoCK ON LAKE SHORE.
The owner of the adjacent .land has a qualified proprietary interest in the . soil un.der" the edge of the shore o"f a lake, so as to give him the right to construct aud maintaiq a dock along the shore, and extending the necessary distance. under thewate:r; and, whel1 thus erected, the dock is an appurtenance .of the real estate. A .chattel mortgage upon a dock of which th(l. mortgagor is left in possesSiOIl, no interest in the land upon which the dock is situated being transferred to the is void as against an execution levied upon the land by a judgment creditor of the mortgagor. the mortgage not bemg filed till after the levy .of the ,execution.lIow. St. :Mich. § 6193. .. .
2. OHATTEL .?(ORTGAGE-NOT FILEl)-:-:MORTGAGE ON DOCK-EXEOUTION LEVIED UPON LANJ:>-,.How: ST. :MICK: § 6193.
EQUITy-dREDITl;)RS' BILL-:-LEvy OF Ex,li:CUTION-FILING MORTGAGE AFTER
LEVY.· The filing' of a chattel mortgage on a dock situated upon land belonging to the mortgagor, after an execution has1;>een levied upon the lalld. puts such an obstruction in the way of the judgment creditor realizing his just satisfaction out ()f the 'property of the defendant in execution 8S is calculated to inspire doubt and apprehe}1sion in the mi1ll1s of purchasers. and prevent their bidding upon the proparty; and the judgment creditor may maIntain a creditors' bill to have such IQ.ortgage decl4red ffaudulentand void, and to have U set aside. . .'. . ." .