Sec. 375. Guardian's sales. Proceedings by a guardian to sell land are not of such adversary character as to require the appointment of a guardian ad litem for his ward. Orman et al. v. Bowles et al., 18 Colo. 463 (33 Pac. Rep. 109). They are in the nature of a proceeding in rem and notice to the ward is not necessary. Myers et al. v. McGavock et al., 39 Neb. 843 (58 N. W. Rep. 522). Where the statute requires guardian sales to be approved by the court ordering them, one who purchases at a sale which is not thus approved, does not even acquire an equitable title, and such purchaser cannot, in case of ejectment by the wards, demand a return of the price paid to the guardian, where it is not shown that the guardian paid the money to the ward, or used it for his benefit. Bone v. Tyrrell et al., 113 Mo. 175 (20 S. W. Rep. 796). The filing of a petition gives the court jurisdiction over the ward, and he cannot overthrow a sale subsequently ordered on account of a defective publication or service of notice upon next of kin or other persons interested in the estate. Scarf v. Aldrich, 97 Cal. 360 (32 Pac. Rep. 324; 33 Am. St. Rep. 190). A defective general description of the land given in the petition to sell may be remedied by a correct precise description by metes and bounds given in the order of sale. Scarf v. Aldrich, 97 Cal. 360 (32 Pac. Rep. 324; 33 Am. St. Rep. 190). The title passes upon the execution of the deed, and not upon the confirmation of the sale. Scarf v. Aldrich, 97 Cal.

360 (32 Pac. Rep. 324; 33 Am. St. Rep. 190). But under N. C. Code, § 1602, it is held that no title passes unless the sale is confirmed. In re Dickerson, 111 N. C. 108 (15 S. E. Rep. 1025). Under Colo. Gen. Stat., 1883, § 1594, a guardian may have an order to sell unproductive real estate of his ward for the purpose of making a better investment, without showing that he has "faithfully applied all the personalty." Orman et al. v. Bowles et al., 18 Colo. 463 (33 Pac. Rep. 109). Under Wisconsin Rev. Stat., §§ 3919, 4004, a guardian's sale without his having executed a proper bond conveys no title. Weld v. Johnson Mfg. Co., 84 Wis. 537 (54 N. W. Rep. 335). A notice of sale, which correctly described by government subdivisions the land belonging to the ward, and published in the county where the same is situated, is not void for uncertainty though such description failed to name

the county and state. Richardson et al. v. Farwell, 49 Minn. 210 (51 N. W. Rep. 915). A guardian's sale will not be set aside in a collateral attack, it appearing that the court had jurisdiction, on account of mere irregularities. Larimer v. Wallace, 36 Neb. 444 (54 N. W. Rep. 835). A court having acquired jurisdiction to order the selling of an infant's land under How. Mich. Stat., § 6719, it has jurisdiction of supplemental proceedings to enforce payment pursuant to the sale. In re Axtell, 95 Mich. 244 (54 N. W. Rep. 889).

Cal. Code Civ. Proc., §§ 1782, 1783, construed. Scarf v. Aldrich, 97 Cal. 360 (32 Pac. Rep. 324; 33 Am. St. Rep. 190). Ky. Civ. Code, § 489, subd. 5, applied-sale of infant's realty for re-investment. Tyler v. Tyler et al., Ky. (19 S. W. Rep. 666). Ky. Gen. Stat., ch. 48, art. 2, § 16; Civ. Code, § 35, subd. 4, construed-sale by foreign guardian. Watts v. Wilson et al., 93 Ky. 495 (20 S. W. Rep. 505). Ky. Civ. Code, 1851, § 81, construed-service of notice upon infant. Morrison v. Garrott et al., Ky. (22 S. W. Rep. 320). La. Act, No. 43, of 1882, construed-family meetingsale of ward's realty-validity. Lemoine et al. v. Ducote et al., 45 La. An. 857 (12 So. Rep. 939). La. Civ. Code, art. 361, applied. Rist v. Hartner et al., 44 La. An. 378 (10 So. Rep. 760). Md. Code, 1860, art. 16, §§ 36, 37, 45, applied. Mumma v. Brinton, 77 Md. 197 (26 Atl. Rep. 184). Minn. Gen. Stat., 1878, ch. 57, § 51, applied. Richardson et al. v. Farwell, 49 Minn. 210 (51 N. W. Rep. 915). Mo. Rev. Stat., 1855, pp. 826, 827, §§ 24-28, construed. Bone v. Tyrrell et al., 113 Mo. 175 (20 S. W. Rep. 796). Va. Code, 1887, §§ 2604-2609, construed and applied. Harkrader v. Bonham et al., 88 Va. 247 (16 S. E. Rep. 159).

Sec. 376. Guardian's purchase at his own sale. Where a guardian, who having difficulty in procuring a bidder at his sale, apparently in good faith, causes another to bid the land off, under an agreement that such party is to make an effort to sell the land at private sale and give the estate the benefit of it, but if he cannot do so the guardian will take the land off his hands after he gets his deed therefor, it is held that where the guardian acquires the title in pursuance to such an arrangement and subsequently conveys to another, who

takes without notice, the title of his vendee will not be affected, but the guardian will be held to account to his wards. for the difference between the amount which he paid for the land and its actual value at the time of the sale. Morrison v. Garrott et al., Ky. (22 S. W. Rep. 320). A guardian cannot either directly or indirectly purchase his ward's land at his own sale. Taylor v. Calvert, Rep. 531).

Ind. (37 N. E.

Ky. (23 S.

Sec. 377. Miscellaneous notes. In an action by wards to set aside a guardian's sale of a part of their real estate they will be charged with so much of the proceeds thereof as were received by them in the way of improvement to their estate. Hays et al. v. Bradley, W. Rep. 372). "It is a general rule that when the ward, arriving at age, with a knowledge of the facts and in the absence of fraud, receives and retains the purchase price arising from the guardian's sale of his land, he cannot afterwards question its validity." Kingsley v. Jordan et al., 85 Me. 137 (26 Atl. Rep. 1090). Where a guardian, in pursuance to the statute, executes a special bond when making a sale of his ward's real estate, the sureties on his bond executed at the time of his appointment as guardian are not liable for the misappropriation of the proceeds of such sale. Madison County v. Johnston, Ia. (50 N. W. Rep. 492). Suits affecting the ward's title should be brought in his name by the guardian and not in the name of the guardian. Lombard v. Morse, 155 Mass. 136 (29 N. E. Rep. 205; 14 L. R. A. 273). In an action by a guardian against third parties, on behalf of his wards, he cannot litigate issues between himself and his wards. Sandoval v. Rosser, Tex. Civ. App. (26

S. W. Rep. 930). Consent to a decree of foreclosure against his ward is not of itself evidence of fraud on the part of the guardian. Swift v. Yanaway, (38 N. E. Rep.

589).

Ill.

HOMESTEAD.

STRUBY-ESTABROOK MERCANTILE CO. ET AL. v. DAVIS.

(18 Colo. 93.)

Homestead entries-Exemption of. Under the United States statute, § 2296, all lands entered are liable to the satisfaction of debts contracted by the homestead claimant, between the date of the final certificate and the date of the patent.

HAYT, C. J.

Sec. 378.

Statement of the case-Statute construed. The following questions are presented by this record: First. Are lands entered under the United States homestead acts liable to the satisfaction of debts contracted by the homestead claimant between the date of the final certificate and the date of the patent? Second. Is the capital stock of a ditch company exempt from levy and sale where the ditch is used to convey water to land entered under the homestead act?

The first of these questions is not free from doubt. The debt having been contracted prior to the actual issuance of the patent, the exemption is claimed by the literal terms of the act. On the contrary, plaintiff in error contends that the exemption provided for by section 2296 of the Revised Statutes of the United States applies to the land only prior to the issuance of the receiver's final certificate therefor; that from. and after the date of the issuance of such certificate the claimant must be presumed to have complied with all the conditions of the law necessary to entitle him to a patent therefor, and that when the patent issues it relates back to the date of such final certificate. A number of cases have been cited in which this section of the United States statute has been under consideration by the courts. In none of these cases, however, has the question now presented been directly before the courts for adjudication.

Sec. 379. Homestead entries-Exemption-Authorities reviewed. An examination of these cases shows that in nearly all it affirmatively appeared that the debt was contracted prior to the issuance of the receiver's final certificate, and in none of them does the contrary appear. Seymour v. Sanders, 3 Dill. 437; Gile v. Hallock, 33 Wis. 523; Patton v. Richmond, 28 La. Ann. 795; Miller v. Little, 47 Cal. 348; Russell v. Lowth, 21 Minn. 167 (18 Am. Rep. 389); Clark v. Bayley, 5 Ore. 343; Lumber Co. v. Jones, 32 Kan. 195 (4 Pac. Rep. 74). In the case of the Lumber Co. v. Jones, supra, the action was to foreclose a mechanic's lien upon certain real estate. The defense relied upon was the same as here. In that case, however, the final certificate had not been issued at the time the lien was claimed, and the court decided that the lien did not attach, but said: "If the defendant had been entitled to a patent, we think the lien would have attached to the land, for where a person is entitled to a patent-that is, where a patent is already due-the rights and liabilities of the parties are generally the same as though the patent had in fact been issued. But in this case the defendant was not entitled to any patent." Although the views of the court thus declared do not appear to have been necessary to the judgment, they are entitled to weight as an expression of opinion from an able court. The nature of the title conveyed by the certificate was under investigation. In the case of Omaha & Grant Smelting Co. v. Tabor, 13 Colo. 41 (21 Pac. Rep. 925; 16 Am. St. Rep. 185; 5 L. R. A. 236), Mr. Commissioner Reed, in an opinion approved by this court, said: "The patent does not invest the purchaser with any additional property in the land. It only gives him a better legal evidence of the title which he first acquired by the certifi cate." It has frequently been held that the final certificate is as binding upon the government as the patent, and that when the patent issues it relates back to the entry. Not only should the patent be treated as mere evidence of title, but it is the settled doctrine of the courts that its issuance is purely a ministerial act. Blanchley v. Coles, 6 Colo. 350; Poire v. Wells, 6 Colo. 406; Steel v. Smelting Co., 106 U. S. 447 (1 Sup. Ct. Rep. 389); Heydenfeldt v. Gold, etc. Co., 93 U. S. 634. We are of the opinion that the exemption provided for only ap