Barrette v. Whitney

• Decision Date: 23 November 1909
• Docket Number: 2013
• Court: Utah Supreme Court
• Parties: BARRETTE v. WHITNEY

106 P. 522

36 Utah 574

BARRETTE v. WHITNEY

No. 2013

Supreme Court of Utah

November 23, 1909

APPEAL from District Court, Third District; Hon. M. L. Ritchie Judge.

Action by William J. Barrette against S. A. Whitney.

Judgment for defendant. Plaintiff appealed.

AFFIRMED.

Henderson Pierce, Critchlow & Barrette for appellant.

APPELLANT'S POINTS.

What is a marketable title? (Swayne v. Lyon, 67 Pa. 436; Glassman v. Conclon, 27 Utah 463; Turner v McDonald, 76 Cal. 179; Herman v. Somers, 158 Pa. St. 424, 38 Am. St. Rep. 851, and note; Moore v. Williams, 115 N.Y. 586, 12 Am. St. Rep. 844; Vought v. Williams, 8 L.R.A. 591 [N.Y.]; Schenck v. Wicks, 23 Utah 581.)

It is so fundamental that one ought not to have to state it, that "No person shall be deprived of his life, liberty or property without due process of law." Constitution of Utah, article 1, sec. 7. The 14th amendment to the Constitution of the United States provides that "No State shall . . . deprive any person of life, liberty or property without due process of law."

Appellant claims that to distribute this property to the six persons who naively admit that they are the only heirs, without notice to other persons who may be heirs, and without giving such other persons an opportunity to be heard, is to deprive the latter persons of property without due process of law. This property vested in all the heirs immediately upon the death of the decedent, subject only to the possession of the administrator appointed by the court for the purpose of administration, and such administrator has no authority of law to take the property of one heir and give it to other heirs upon the mere ex parte showing of such heirs.

Due process of law requires that a party shall be properly brought into court and that he shall have an opportunity when there to prove any fact which, according to the Constitution and the usages of the common law would be a protection to him. [3 Words and Phrases, 2231 (and cases).]

Webster's familiar statement of due process of law in the Dartmouth College Case, 17 U.S. 518, is "The general law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial." A like rule is laid down in the Slaughter House cases in 83 U.S. 36. Due process of law means a course of legal proceedings according to the rules and principles which have been established in our system of jurisprudence for the protection and enforcement of private rights. (Pennoyer v. Neff, 95 U.S. 714.) The first and simplest of these rules is that no man shall be deprived of his property by a decree of any court without first having an opportunity to be heard. See three columns of cases in the third volume of Words and Phrases, page 2244.

Van Cott, Allison & Riter for respondent.

RESPONDENT'S POINTS.

A decree of distribution is a proceeding in rem; it may be made without any notice unless the statute provides otherwise, in which case if none is given it is still conclusive against collateral attack. It can only be questioned on appeal or by direct proceeding.

The decree of distribution is conclusive on every fact of which the court has power to adjudicate in the absence of an appeal. A purchaser under a decree of distribution need not look beyond the decree itself. The decree of distribution is conclusive on all the world.

The decree of distribution was within the power of the lower court to render, and its judgment until reversed is binding on every other court.

(2 Black on Judgments, secs. 794, 808; Grignon's Lessee v. Astor, 2 How. [U.S.] 319; McPherson v. Cunliff et al., 11 Serg. & Rawl., star page 422; Wilson v. Hartford F. I. Co., 164 F. 817; Good v. Norley, 28 Iowa 208; Sheldon's Lessee v. Newton, 3 Ohio St., star page 494; Mohr v. Manierre, 101 U.S. 417; Simmons v. Saul, 138 U.S. 453; Garrett et al. v. Boeing et al., 68 F. 57; Knight v. Hollings, 63 A. 40 [N. H.]; Davis v. Gaines, 104 U.S. 386; McArthur v. Allen, 3 F. 313; Holmes v. Oregon, etc., 9 F. 229; Tilton v. Cofield, 93 U.S. 165; Tilt v. Kelsey, 207 U.S. 56; Kearney v. Kearney, 72 Cal. 591; Hanley v. Hanley, 114 Cal. 694; Ladd v. Weiskopf [Minn.], 64 N.W. 99; Day v. Micou, 18 Wall. 162; Clark v. Rossier [Idaho], 78 P. 358; Amy v. Amy, 12 Utah 278; Hoagland v. Hoagland, 19 Utah 103; Erngreen v. Cronlund, 19 Utah 416; Chilton v. U. P. Ry. Co., 8 Utah 47.)

FRICK, J. McCARTY, J., concurs. STRAUP, C. J., dissenting.

OPINION

FRICK, J.

Appellant brought this action as a vendee of certain real estate to recover damages for a breach of an agreement to convey a marketable title by the respondent as vendor. Upon a trial to the court, the title was held marketable, and therefore that the agreement had not been breached, and judgment was entered accordingly, from which this appeal is prosecuted.

The judgment is based upon an agreed statement of facts, and hence no findings were made by the court. The facts agreed upon are substantially, as follows:

That on and prior to the 12th day of July, 1883, one Joseph Toronto was the owner in fee-simple of the real estate which appellant purchased from respondent; that said Toronto, on said 12th day of July, 1883, died intestate in Salt Lake County; that thereafter, on the 1st day of December, 1900, after due notice, the district court of Salt Lake County, in its capacity and while acting as the probate court of said county, duly appointed one Joseph B. Toronto administrator of the estate of said Joseph Toronto, deceased; that said Joseph B. Toronto duly qualified and discharged the duties as administrator of said estate; that the petition praying for letters of administration, among other things, also stated the names and residences of the several persons who, it was alleged, constituted, all the heirs of said deceased; that an inventory and appraisement of the property belonging to said estate were duly made and filed, and notice to creditors duly published as provided by law; that after fully administering said estate said administrator, on the 4th day of April, 1902, filed his final account in said court, and therewith also filed an agreement signed by all the persons claiming to be the only heirs at law of said deceased, and asked that said estate, consisting wholly of real estate, be distributed among the persons named in said application for distribution; that no notice, either by publication or otherwise, was ever had or given of the hearing on said application for distribution; that on said 4th day of April, upon a waiver of notice by all of such heirs, and without any other or further notice, a hearing was had upon said application for distribution, and a decree was entered by said court, by the terms of which said court settled and approved the final account of said administrator, distributed, and partitioned the real estate of which said Joseph Toronto died seized among the several persons who claimed to be his heirs. The application and decree of distribution are made a part of the statement of facts.

The application for distribution, among other allegations, in substance, also contained the following: That all the debts and taxes due from said deceased had been paid; that all the heirs were of full age; that said deceased left no personal property, and the names of the heirs are given as they appear in the petition praying for letters of administration, and the part to be allotted to each is fully described; that all of the heirs and distributees joined in the application; and that they each and all waived notice of the application for distribution. The application is duly signed by all the persons named therein and is duly verified.

In the decree were also contained the following findings;

"The above distributees are all the heirs of said deceased and the only persons interested in said decedent's estate, and all . . . have duly and regularly waived and dispensed with notice of the hearing . . . for distribution. . . . That said court has full jurisdiction of all the heirs of said deceased . . . and full jurisdiction . . . to distribute all the property of said deceased as the same is herein partitioned and distributed."

The portion assigned to each person is specifically described.

Appellant concedes that the appointment of the administrator and the proceedings were regular and according to law up to the time of making distribution. He, however, asserts that the failure to give any notice of any kind of the hearing on the application for distribution makes the decree of distribution void as to all persons who may have or claim to have any interest in said estate except those who signed the waiver of notice or participated in the distribution. In other words, appellant contends that such a notice is jurisdictional, and that a decree of distribution without a notice is vulnerable to collateral attack. Distribution to the interested parties, without notice, it is asserted, amounts to the taking of property without due process of law.

In this case it will be observed that no presumption that notice was given may be indulged, since it is admitted that no notice of any kind was given, but that the publishing or giving of such a notice was waived by the several persons who claim to constitute the heirs of the decedent. No doubt, if such a notice is jurisdictional, as appellant asserts, then the decree cannot be binding except on those who participated in it, since the persons who claim to be the only heirs could not, by such a claim, exclude or bind others who may have or claim to have an interest in the estate. The whole question therefore hinges upon whether notice of the hearing on the application for distribution is essential to give the court jurisdiction. Upon this question the courts are not in perfect harmony. Much of...