Abrams v. White

• Court: United States State Supreme Court of Idaho
• Writing for the Court: STOCKSLAGER, C. J.
• Citation: 11 Idaho 497,83 P. 602
• Parties: ABRAMS v. WHITE
• Decision Date: 28 November 1905

83 P. 602

11 Idaho 497

ABRAMS
v.
WHITE

Supreme Court of Idaho

November 28, 1905

PROBATE COURTS-JURISDICTION-SUITS IN EQUITY-DEMURRER.

1. The probate courts of this state have exclusive jurisdiction of the settlement of estates of deceased persons subject to appeal to the district court for review of any proceeding had therein.

2. Equity will not lend its aid in an original proceeding in the district court, unless it is shown that fraud has been perpetrated in the probate court. The particular act and thing constituting the fraud must be definitely and positively alleged, and that the party is without remedy elsewhere than in a court of equity.

3. A demurrer will be sustained to a complaint in equity that fails to allege fraud in the probate court, and also show the necessity for the prosecution of the action in the court of equity.

APPEAL from the District Court of Nez Perce County Honorable Edgar C. Steele, Judge.

Judgment for defendants, from which plaintiffs appeal. Judgment affirmed.

Judgment affirmed, with costs to respondent.

F. D. Culver, for Appellant.

Equity has the power to set aside the judgment or decree of any court. (Pomeroy's Equity Jurisprudence, sec. 919.) Whenever a judgment or decree of any court has been obtained by fraud, the fraud is regarded as perpetrated upon the court, and equity will cancel it. (Pomeroy's Equity Jurisprudence, sec. 919.) In the exercise of its power in civil causes the probate court is of peculiar and limited jurisdiction, and not a court of general jurisdiction. (Code Civ. Proc. 1901, sec. 3696.) Courts of equity have concurrent jurisdiction with courts of probate of all matters of guardianship and settlement of estates of deceased persons. (Trotter v. Mutual Reserve etc. Ins. Assn., 9 S. Dak. 596, 62 Am. St. Rep. 887, 70 N.W. 843; Bailey v. Bailey, 67 Vt. 494, 48 Am. St. Rep. 826, 32 A. 470; Deck v. Gerke, 12 Cal. 433, 73 Am. Dec. 555.) "When a bill in equity contains an allegation of fraud, it is a general rule that such allegation must be denied by answer, and a general demurrer will not be allowed." (9 Ency. of Pl. & Pr. 685.) "The doctrine of caveat emptor applies, and requires purchasers to examine title which he is presumed to know, since there is no warranty, and even where no fraud or misrepresentation obtains, if loss ensues, a purchaser must bear it. It is a judicial sale." (Smith v. Wildman, 178 Pa. 245, 56 Am. St. Rep. 760, 35 A. 1047, 36 L. R. A. 834; Lindsay v. Cooper, 94 Ala. 170, 33 Am. St. Rep. 105, 11 So. 325, 16 L. R. A. 813; Halleck v. Guy, 9 Cal. 181, 70 Am. Dec. 643; Roberts v. Hughes, 81 Ill. 130, 25 Am. Rep. 270.) So long as the probate remains unrevoked, no mortgage lien claim exists or could be invoked predicated upon the same subject matter. (Ryno v. Ryno, 27 N.J. Eq. 522.) "Where subject matter, cause of action and parties are the same in a former suit, the judgment therein constitutes a bar to the second suit--res judicata." (Lyon v. Perrin etc. Mfg. Co., 125 U.S. 698, 8 S.Ct. 1024, 31 L.Ed. 841; Durant v. Essex Co., 7 Wall. 107, 19 L.Ed. 154; Cromwell v. Sac County, 94 U.S. 351, 24 L.Ed. 195; Wilson v. Deen, 121 U.S. 525, 7 S.Ct. 1004, 30 L.Ed. 980; Bank of United States v. Beverly, 1 How. (U.S.) 134, 11 L.Ed. 75.) The application for probate and the judgment of the court upon it are binding upon all the world until revoked or set aside. (Steele v. Renn, 50 Tex. 467, 32 Am. Rep. 605; Scott v. Calvit, 3 How. (Miss.) 148; Taylor v. Tibbatts, 13 B. Mon. (Ky.) 177; Wells' Will, 5 Litt. (Ky.) 273; Ray v. Doughty, 4 Blackf. 115; Holliday v. Ward, 19 Pa. 485, 57 Am. Dec. 671.) "A transfer of property to a creditor will be held fraudulent and void, unless it is shown that the consideration is a valid and subsisting debt, and that the property does not exceed the value of the debt, and that the property is taken in discharge thereof." (Caball v. Hamilton Brown Shoe Co., 81 Tex. 104, 16 S.W. 811; Briggs v. Mitchell, 60 Barb. 288; Frank v. King, 121 Ill. 251, 12 N.E. 720; Christie v. Bridgman, 51 N.J. Eq. 331, 25 A. 939, 30 A. 429; Kaye v. Crawford, 22 Wis. 320; Sutton v. Hasey, 58 Wis. 556, 17 N.W. 416; Le Saulnier v. Krueger, 85 Wis. 214, 54 N.W. 774; note in 36 L. R. A. 340.) It is the duty of the executor or administrator to sell for the best price he can obtain; and it is held that if a sale has been for an inadequate price, it was not fairly made, and that for this reason the court may set it aside. (Hirshfield v. David, 43 Tex. 155; Shaw v. Spencer, 100 Mass. 393, 97 Am. Dec. 107, 1 Am. Rep. 115; Allender v. Riston, 2 Gill & J. (Md.) 86; Pierce v. Holzer, 65 Mich. 263, 32 N.W. 431; Smith v. Ayer, 101 U.S. 320, 25 L.Ed. 955; Dodson v. Simpson, 2 Rand. (Va.) 294.) A demurrer will not lie if the parties have a common interest centering in the point of issue (void acts and fraud) in the cause. (Bliss on Code Pleadings, pp. 151, 177, secs. 96, 110; 1 Estee's Pleading, p. 129, sec. 164.) Everyone connected with a fraudulent transaction may be made a party defendant. (Snodgrass v. Andrews, 30 Miss. 472, 64 Am. Dec. 169; Butler v. Spann, 27 Miss. 234; Fellows v. Fellows, 8 N.Y. Com. L. (L. ed.) 534.)

I. N. Smith and Charles L. McDonald, for Respondent.

In this case the court dismissed the case for want of jurisdiction. This point is never waived. (Idaho Rev. Stats., sec. 4178.) The district court here had no jurisdiction of this matter, and hence no error was committed in dismissing the case. (Clark v. Rossier, 10 Idaho 348, 78 P. 358; Idaho Rev. Stats., 3842; Glendenning v. McNutt, 1 Idaho 592.) The complaint in this case was totally devoid of equity or allegations of fraud or any statement of facts which would in any manner...