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Dequindre and Others v. Williams.

jurisdiction to act as it is invoked to do, and it does so act, the matter can

not be questioned collaterally. SAME.- Residence of Ward.—The Associate Judges, as a Court of Probate, on

the 10th of August, 1829, appointed a guardian for certain infants. Ileld, that an inquiry as to whether the infants were at the time of such ap

pointment residents of this or another state, could not be raised collaterally. SAMD.— Vendor and Purchaser.-Guardian's Sale.- Application of Proceeds.

Where a guardian, who has received his appointment from a court of superior jurisdiction having authority to make such appointments and jurisdiction of guardians' petitions to sell lands, but without jurisdiction to make the particular appointment, sells land of his ward, under an order of such court, to one who purchases and pays for such land, relying in good faith on such order, such purchaser will be protected in the title so acquired, if the guardian applies the proceeds properly. And in an action by the late ward, arrived at majority, to recover such land, a debt of the guardian against the deceased father of the ward, through whom the plaintiff claims title, allowed by such court as a credit to the guardian upon settlement, will

be presumed to have been rightfully allowed. INDIAN TREATY.-Grant.-Relation.—A section of land, to be located under

the direction of the President, was granted to a certain person by an Indian treaty; and after the death of the grantee, the proper court, upon petition of the guardian of the grantee's heirs at law, ordered the sale of the unlocated section; and, the land having been located by the assignee of the purchaser at such guardian's sale, the proper court ordered a conveyance of the specific land to such assignee, which was made, but never approved by

the President. Held, that, by the doctrine of relation, the treaty operated instantly in law as

a grant, the subsequent location of the land merely ascertaining the specific

thing which was granted. IIeld, also, that the approval of the President was not necessary to the valid

ity of the guardian's deed of conveyance. SAME.— Case Stated.-Suit by the heirs at law of A. against B., to recover

certain real estate. Trial upon the following agreed statement of facts: A section of land was granted by treaty with the Potawatamies, of October 16th, 1826, to A., to be located under the direction of the President. It was located, in 1837, in Allen county, without the territory ceded by the Indians under said treaty, the premises in controversy being a part of that section. In 1828, A. died, in Illinois, where he then resided, leaving a widow and children surviving him, who continued to reside in Illinois until 1831, when they removed to Knox county, in this State, prior to which they had no property in Indiana, except the unlocated land. It appeared by the record of certain proceedings in Knox county, that on the 10th of August, 1829, the court doing probate business, held by the Associate Judges, appointed a guardian of A.'s children, the plaintiff's in this action, and that " there being no property," no bond was required. The bond required by law was to be in double the value of the personal property. On the followDequindre and Others v. Williams.

ing day, the guardian presented his petition to sell the unlocated section, and, after an appraisement at $800, the sale was ordered, the guardian to give bond with sureties approved, within thirty days, but no such bond appeared in the transcript of the proceedings. The sale was to be private, for one-half cash and the balance in two equal annual instalments. In lugust, 1839, the guardian reported to the Probate Court, that in November, 1831, be had sold the float for $1,000 to one who transferred his right to another, and he to C., who paid the purchase-money and, after having procured the land to be located, died, the report describing the section located. The Probate Court confirmed the sale and directed a conveyance of the specific land to the heirs at law of C. which was accordingly delivered, but was never approved by the President. The title of C. and his heirs afterwards became vested in B., who, with his grantors, paid taxes on the land and took care of and protected it from 1841, though not in actual possession, till the commencement of this action, in 1865. From its location, in 1837, till 1841, it was worth $30 per acre. From January, 1829, till 1840, the United States, it was admitted, held public lands in Knox county and elsewhere, in this State and other states. Upon this evidence the court

found for the defendant. Held, that the evidence sustained the finding.

APPEAL from the Allen Circuit Court.

FRAZER, C. J.—This was an action by the appellants, heirs at law of Francois Dequindre, against the appellee, to recover land in Allen county. An issue was made by the general denial, which was submitted for trial upon an agreement as to the facts. There was a finding for the defendant and judgment thereon over a motion for a new trial.

A section of land was granted, by treaty with the Potawatamies, of October 16th, 1826 (7 U.S. Stat. at Large, 295), to Francois Dequindre, to be located under the direction of the President. It was located in 1837, in Allen county, without the territory ceded by the Indians under the treaty; and the premises in controversy are a part of that section. Dequindre died in Illinois, where he then resided, in 1828, leaving a widow and children surviving him, who continued to reside in Illinois until 1831, when they removed to Knox county, in this State, prior to which they had no property in Indiana, except the unlocated land.

It appears by the record of certain proceedings in Knox county, that, on the 10th day of August, 1829, one Broui

Dequindre and Others v. Williams.

lette was, by a court doing probate business, held by the Associate Judges, appointed guardian of Dequindre's children, who are the present plaintiffs; and it is recited, that “there being no property, no bond is required.” The bond required by law was to be in double the value of the personal property, which being nothing, the want of such bond cannot vitiate the appointment. On the following day, the guardian presented his petition, praying authority to sell the unlocated section, which (after an appraisement at eight hundred dollars) was ordered, the guardian to give bond, with sureties approved, within thirty days. No such bond appeared in the transcript of the proceedings. The sale was directed to be at private sale, for one-half cash in hand, the balance in two equal annual instalments.

In August, 1839, the guardian reported to the Probate Court, that, in November, 1831, he had sold the float to John and William Hamilton, for one thousand dollars, whose right they had transferred to another, and he to one McBean, who paid the purchase-money and died; that McBean had procured the land to be located, describing the section located. That court confirmed the sale, and directed a conveyance of the specific land to the heirs at law of McBean, which was accordingly delivered, but was never approved by the President. The title of McBean and his heirs afterwards became vested in the defendant, who, and his grantors, have paid taxes on the land, and taken care of and protected it, since 1841, though never in the actual possession thereof. (This suit was begun in 1865.) From its location, in 1837, until 1841, this land was worth thirty dollars per acre. The United States, it was admitted, held public lands in Knox county and elsewhere, in this State and other states, from January, 1829, until 1840.

We are to determine whether this evidence was sufficient to sustain a verdict for the defendant.

The claim of the plaintiff's was stale, and it is not questioned that the defendant was an honest purchaser, for an

Dequindre and Others v. Williams.

adequate price. These circumstances do not, in this particular case, possess much influence; for the decision must turp, not on questions of fact, but of law. They do, however, seem to class the case amongst those not deemed favorites of the law. Nevertheless, if the title of the plaintiffs has not been divested by the proceedings of the courts of Knox county, already stated, nor their suit barred by any statute of repose, they must recover.

A number of questions have been agitated in the arguments, written and oral, which we have found it not easy to determine to our own satisfaction; and though we have been aided greatly by the industry and learning of able counsel, upon some of them we have not, after the fullest consideration, found ourselves agreeing with entire unanimity.

1. Had the Associate Judges jurisdiction on the 10th of August, 1829, to appoint guardians for infants?

Much of the legislation at that early period of our history as a State was exceedingly obscure and difficult of construction. By the act of 1824 (R. S. 1824, p. 314), the equity side of the circuit court had complete original jurisdiction of the relation of guardian and ward and of all matters relating to the settlement of decedent's estates. By the act of 1825 (Acts 1825, p. 55), the act of 1824 was so amended that the associate judges should be a "court of probate,” with “power to hear and determine all matters in relation to the settlement of decedents' estates," which, by the act of 1824, had been vested in the circuit courts, with power to the circuit courts to correct and review their proceedings. It will be seen also, that, by the second section of this act, it was intended to give them jurisdiction to direct the sale of the real estate of decedents to pay debts. To do this business, sessions were to begin on the Mondays preceding the regular terms of the circuit courts.

No express provision was made as to whether any records of this court of probate should be kept, nor that it should have a seal or clerk. Yet those portions of the act

Dequindre and Others v. Williams.

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of 1824 were left in force which authorized the clerk of the circuit court, in vacation, to take the proof of wills and to grant letters testamentary and of administration (sec. 4), requiring inventories and accounts of sales to be filed in his office (secs. 8, 9); and the practice was universal, so far as we have been able to learn, that the clerk of the circuit court acted as clerk of this probate tribunal and kept its records, as such records had been kept when the equity side of the circuit court exercised the jurisdiction; and it is believed that its process was, in fact, attested by the clerk and seal of the circuit court.

If the question depended wholly upon a construction now to be given to this act of 1825, it would be not only difficult, but, perhaps, impossible, to hold that it conferred authority to appoint guardians. There is nothing in the terms of the act to justify it, and no obscurity in the language employed to call for construction.

The authority given, and the only authority, was, to "hear and determine all matters in relation to the settlement of decedents' estates.” But the associate judges did, nevertheless, in some counties, and, it is believed, very generally, assume jurisdiction to appoint guardians for infants, and over the relation of guardian and ward, even to the extent of directing the sale of real estate of wards by their guardians. Hiestand v. Kuns, 8 Blackf. 347, and Hunt v. White, 1 Ind. 105, are cases in which such appointments were made, and. the validity of them seems to have passed unquestioned. Subsequent legislation repeatedly recognized this jurisdiction as rightfully exercised.

In 1826, it was enacted, “that in the appointment of guardians, &c., it shall not be lawful for the circuit court or court of probate to appoint as guardian, ** the executor or administrator of the estate in which such minor is interested.” Acts 1826, p. 55, sec. 23. In March, 1826, the court house of Dearborn county was destroyed by fire, together with the records of the county. In 1827, an act was passed

VOL. XXXI.-29

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