Lyon, J.
The question first to be determined is, Did the circuit judge err in holding that the administrator’s deed is void, and that the title to the land in controversy is in the plaintiff ? In Chase v. Ross, ante, p. 267, we held that if any of the conditions specified in sec. 62, ch. 94, R. S. (Tay. Stats., 1193, § 62), are wanting, or do not appear by direct proof or legal inference, a sale of land made by an executor, administrator or guardian under that chapter, is void. Applied to this case, one of those conditions is, that the administrator “ gave notice of the time and place of salens in this chapter prescribed.” Such chapter prescribes that the notice of sale shall be posted and published as therein directed, “for three weeks successively next before such sale.” (Sec. 24.) In Eaton v. Lyman 33 Wis., 34, and in Chase v. Ross, supra, we had occasion to. construe similar language in other statutes; and under those decisions it must be held that the statute last above quoted requires, a publication of the notice of sale for twenty-one days. In other words, three weeks must intervene between the first publication and the day of sale. In this case the notice was first pubr lished in. February 27, and the sale took place March 14, or [340]*340only fifteen days thereafter. Moreover, the posting of the notices was on February 28, being only fourteen days before the sale. These circumstances invalidate the administrator’s deed and defeat the plaintiff’s title ; and either of them would have the same effect.
There is another condition of a valid administrator’s sale entirely wanting in this case, and the want of which is equally fatal to the deed. It is that the premises must be “ held by one who purchased in good faith.” R. S., ch. 94, sec. 62, subd. 5. It is difficult to find any element of good faith in the purchase of the premises by the defendant. Section 27 of the same chapter provides as follows : “ The executor or administrator making the sale, or the guardian of any minor heir of the deceased, shall not directly or indirectly purchase, or be interested in the purchase of, any part of the real estate so sold ; and all sales made contrary to the provisions of this section shall be void.” Upon the facts detailed in this record it is perfectly apparent that the defendant was interested in the sale made by him as administrator of, the land in controversy. His account had been allowed against the estate at $1,500; the land was bid off at precisely that sum by McDonough, and immediately conveyed by him to the defendant, who thereupon receipted to the estate for that sum. From these facts, and from all of the surrounding circumstances as they appear by the record, any Intelligent court or jury would find without hesitation that the land was bid off by McDonough for the defendant. The latter is chargeable with knowledge of the law in this behalf, and, knowing that the sale was void because of his interest in the purchase, he cannot be considered a purchaser in good faith. How it would be held in case where, although the administrator was interested in the purchase, the land had subsequently been conveyed to a bona fide purchaser, we do not determine.
We conclude that the court ruled correctly when it held that the administrator’s deed was void, and excluded the question of title from the jury.
[341]*341The only remaining question to be determined is, whether there is error in tbe instructions to tbe jury concerning mesne profits. Tbe evidence is undisputed that tbe defendant beld the premises, from and after 1862, adversely to tbe plaintiff. Daring that time they were not in the possession of the plaintiff or bis guardian,’ and neither of them received or had any control over tbe mesne profits, as such. This is substantially admitted in tbe answer of tbe defendant, and is sufficient to entitle tbe plaintiff to recover for such mesne profits. It is provided by statute (R. S., cb. 141, sec. 13), that “ The plaintiff in any action for tbe recovery of specific real property, or of tbe possession, shall also be entitled in tbe same action to recover damages for the rents and profits of tbe premises recovered, during tbe time the same are unlawfully withheld. * * * * Provided, that the plaintiff shall not be entitled to recover tbe rents and profits of tbe premises recovered, for a longer, term than six years.” It seems to us that bad the court instructed tbe jury that the plaintiff was entitled, absolutely, to recover tbe mesne profits for tbe term specified in tbe statute, it would not be error. But tbe court submitted it to tbe jury as a question of fact to be determined by them, whether tbe proceeds of the land, or tbe mesne profits, bad been received by tbe guardian of the plaintiff and applied to bis benefit, and instructed them that if such was the case tbe plaintiff was not entitled to recover tbe mesne profits which accrued before tbe commencement of tbe action. If there was error in tbe instructions, it was obviously in favor of defendant, and furnishes no reason for disturbing tbe judgment.
We understand it to be tbe correct practice to assess damages for mesne profits down to the date of trial, on tbe same princi-ciple that interest may be recovered to that time in an action on a money demand. Tbe profits in tbe one case, and the interest in tbe other, are but tbe incidents of tbe cause of action.
Neither do we perceive why the plaintiff may not recover damages accruing during his minority. If the guardian fails [342]*342to collect a demand or to recover property belonging to bis ward, no good reason has been suggested why the ward may not recover therefor after he attains his majority.
Before leaving this branch of the case it may be observed, that if the defendant has expended money for the maintenance of the plaintiff, he may recover the same in some appropriate proceeding, but not in this action. And if the defendant is entitled to be paid for any improvements made by him on the premises in question,, his remedy was under the “ Betterment Act.” R. S., ch. 141, secs. 30, 31 and 32, as amended by ch. 24, Laws of 1872.
Although the foregoing views are decisive of the case, yet our duty would be but poorly performed did we fail to make some comment upon the extraordinary manner in which the estate left by John McCrubb was managed and disposed of, or attempted to be disposed of, by the defendant and the county court.
The deceased left an estate appraised at nearly $4,000. It does not clearly appear that he owed a dollar at the time of his death. It is impossible to find from the evidence that he owed over ninety dollars. The expenses of his funeral and cost of a tombstone were one hundred dollars. There was ample personal property belonging to the estate, excluding that selected by the widow under the statute, to have paid all such debts and expenses, and the cost of administration. The estate should have been administered in a few months at small expense, and the land should have been left intact for the heirs. But the county court permitted the administration to linger along for more than five years, and then, without adequate proof (so far as the record shows), and upon a most vague and insufficient statement of the administrator, allowed an account in his favor against the estate of $1,500, and permitted three-fifths, in quantity, of the real estate to be sold to pay it! It is a fair inference from the testimony, that the most valuable portion of the [343]
Free access — add to your briefcase to read the full text and ask questions with AI
Lyon, J.
The question first to be determined is, Did the circuit judge err in holding that the administrator’s deed is void, and that the title to the land in controversy is in the plaintiff ? In Chase v. Ross, ante, p. 267, we held that if any of the conditions specified in sec. 62, ch. 94, R. S. (Tay. Stats., 1193, § 62), are wanting, or do not appear by direct proof or legal inference, a sale of land made by an executor, administrator or guardian under that chapter, is void. Applied to this case, one of those conditions is, that the administrator “ gave notice of the time and place of salens in this chapter prescribed.” Such chapter prescribes that the notice of sale shall be posted and published as therein directed, “for three weeks successively next before such sale.” (Sec. 24.) In Eaton v. Lyman 33 Wis., 34, and in Chase v. Ross, supra, we had occasion to. construe similar language in other statutes; and under those decisions it must be held that the statute last above quoted requires, a publication of the notice of sale for twenty-one days. In other words, three weeks must intervene between the first publication and the day of sale. In this case the notice was first pubr lished in. February 27, and the sale took place March 14, or [340]*340only fifteen days thereafter. Moreover, the posting of the notices was on February 28, being only fourteen days before the sale. These circumstances invalidate the administrator’s deed and defeat the plaintiff’s title ; and either of them would have the same effect.
There is another condition of a valid administrator’s sale entirely wanting in this case, and the want of which is equally fatal to the deed. It is that the premises must be “ held by one who purchased in good faith.” R. S., ch. 94, sec. 62, subd. 5. It is difficult to find any element of good faith in the purchase of the premises by the defendant. Section 27 of the same chapter provides as follows : “ The executor or administrator making the sale, or the guardian of any minor heir of the deceased, shall not directly or indirectly purchase, or be interested in the purchase of, any part of the real estate so sold ; and all sales made contrary to the provisions of this section shall be void.” Upon the facts detailed in this record it is perfectly apparent that the defendant was interested in the sale made by him as administrator of, the land in controversy. His account had been allowed against the estate at $1,500; the land was bid off at precisely that sum by McDonough, and immediately conveyed by him to the defendant, who thereupon receipted to the estate for that sum. From these facts, and from all of the surrounding circumstances as they appear by the record, any Intelligent court or jury would find without hesitation that the land was bid off by McDonough for the defendant. The latter is chargeable with knowledge of the law in this behalf, and, knowing that the sale was void because of his interest in the purchase, he cannot be considered a purchaser in good faith. How it would be held in case where, although the administrator was interested in the purchase, the land had subsequently been conveyed to a bona fide purchaser, we do not determine.
We conclude that the court ruled correctly when it held that the administrator’s deed was void, and excluded the question of title from the jury.
[341]*341The only remaining question to be determined is, whether there is error in tbe instructions to tbe jury concerning mesne profits. Tbe evidence is undisputed that tbe defendant beld the premises, from and after 1862, adversely to tbe plaintiff. Daring that time they were not in the possession of the plaintiff or bis guardian,’ and neither of them received or had any control over tbe mesne profits, as such. This is substantially admitted in tbe answer of tbe defendant, and is sufficient to entitle tbe plaintiff to recover for such mesne profits. It is provided by statute (R. S., cb. 141, sec. 13), that “ The plaintiff in any action for tbe recovery of specific real property, or of tbe possession, shall also be entitled in tbe same action to recover damages for the rents and profits of tbe premises recovered, during tbe time the same are unlawfully withheld. * * * * Provided, that the plaintiff shall not be entitled to recover tbe rents and profits of tbe premises recovered, for a longer, term than six years.” It seems to us that bad the court instructed tbe jury that the plaintiff was entitled, absolutely, to recover tbe mesne profits for tbe term specified in tbe statute, it would not be error. But tbe court submitted it to tbe jury as a question of fact to be determined by them, whether tbe proceeds of the land, or tbe mesne profits, bad been received by tbe guardian of the plaintiff and applied to bis benefit, and instructed them that if such was the case tbe plaintiff was not entitled to recover tbe mesne profits which accrued before tbe commencement of tbe action. If there was error in tbe instructions, it was obviously in favor of defendant, and furnishes no reason for disturbing tbe judgment.
We understand it to be tbe correct practice to assess damages for mesne profits down to the date of trial, on tbe same princi-ciple that interest may be recovered to that time in an action on a money demand. Tbe profits in tbe one case, and the interest in tbe other, are but tbe incidents of tbe cause of action.
Neither do we perceive why the plaintiff may not recover damages accruing during his minority. If the guardian fails [342]*342to collect a demand or to recover property belonging to bis ward, no good reason has been suggested why the ward may not recover therefor after he attains his majority.
Before leaving this branch of the case it may be observed, that if the defendant has expended money for the maintenance of the plaintiff, he may recover the same in some appropriate proceeding, but not in this action. And if the defendant is entitled to be paid for any improvements made by him on the premises in question,, his remedy was under the “ Betterment Act.” R. S., ch. 141, secs. 30, 31 and 32, as amended by ch. 24, Laws of 1872.
Although the foregoing views are decisive of the case, yet our duty would be but poorly performed did we fail to make some comment upon the extraordinary manner in which the estate left by John McCrubb was managed and disposed of, or attempted to be disposed of, by the defendant and the county court.
The deceased left an estate appraised at nearly $4,000. It does not clearly appear that he owed a dollar at the time of his death. It is impossible to find from the evidence that he owed over ninety dollars. The expenses of his funeral and cost of a tombstone were one hundred dollars. There was ample personal property belonging to the estate, excluding that selected by the widow under the statute, to have paid all such debts and expenses, and the cost of administration. The estate should have been administered in a few months at small expense, and the land should have been left intact for the heirs. But the county court permitted the administration to linger along for more than five years, and then, without adequate proof (so far as the record shows), and upon a most vague and insufficient statement of the administrator, allowed an account in his favor against the estate of $1,500, and permitted three-fifths, in quantity, of the real estate to be sold to pay it! It is a fair inference from the testimony, that the most valuable portion of the [343]*343land was tbus sold; and it was sold for $350 less than the appraisal thereof made five years before.
Several hundred dollars were allowed the defendant as administrator for permanent improvements made by him upon the very land thus sold to pay for such improvements. Besides, the court made an enormous, and of course an illegal, allowance for the services of the administrator; but the precise amount thereof does not clearly appeal. It must have been more than five hundred dollars. Moreover, on the 6th of January, 1862, the court allowed the final account of the defendant, in which it is stated that the stock owned by the intestate when he died, was then on the farm unsold, and was in a better condition than when the administrator took possession of it. The appraised value of such stock was $342. Yet on March 31st, following, the county judge approved an inventory of the estate of the plaintiff and his sister and coheir, filed by Mrs. Bray, who had been appointed their guardian, in which inventory no personal property is mentioned.
The administrator should not have been allowed to make any improvements beyond repairs absolutely necessary for the preservation of the estate ; he should have been compelled to administer the estate promptly and economically ; and the real estate should have been preserved intact until it became necessary to sell some portion of it to defray the necessary expenses of the maintenance and education of the infant heirs. But none of these requirements were enforced. Indeed, the whole proceedings seem to be characterized by an utter disregard of the interests of the heirs (who were mere infants), which it is painful to contemplate, and which deserves the severest censure. So flagrant a case of judicial spoliation of the patrimony of infants has seldom, if ever, come to our knowledge, and we hope never to hear of another like it.
By the Court. — The judgment of the circuit court is affirmed.