Page:Federal Reporter, 1st Series, Volume 3.djvu/397

 890 FEDERAL REPORTER. �Can any cîrcumstances be imagined under which a probate judge can appoint a guardian for a minor who neither resides in nor owns property in the county ? Is not such an appoint- ment the aot of a tribunal having no power in the premises ? The purpose of the legislature was to limit the jurisdiction of the probate court to the cases specified, and for obvions rea- Bons. If one judge can make a valid appointment of a guard- ian for a minor residing in another county of the state, any other probate judge in the state may do the same. The resuit might be great confusion and confliot, and serions com- plications concerning titles. Besides, the law always guards carefuUy the rights of infants, and it is apparent that the strict enforcement of the statute is necessary to this end. I regard the statute, therefore, as not merely directory; it is imperative, and the residence of the minor within the county •was, in the case under consideration, the fact upon the exist- ence of which the power of appointment depended. It is not Bufficient, in such a case, that the fact be alleged ; it must exist. The power of the probate judge to appoint guardians is statutory, and limited to the county. Weston v. Weston, 14 Johns. 427 ; Sherman v. Ballon, 8 Cow. 304. �It is conceded that the appointment of an administrator of the estate of a person not dead would be void notwithstand- ing an allegation of his death. I think the appointment of a guardian for a minor whose person and estate are both be- yond the jurisdiction of the court is equally void, notwith- standing the allegation that the minor is within the jurisdic- tion. �The defendant further insists that if the guardian's ap- pointment, and the sale and deed, are ail void, the plaintiff has an adequate remedy at law in an action of ejectment, and therefore cannot resort to a court of equity for relief. This question did not receive much attention at the hearing, and I am not disposed at present to pass upon it. �Whether the bill presents a case in which a party not in possession has a right to resort to equity to remove a cloud upon title, or to cancel and set aside a void deed which has ����