Blackman v. Mulhall

• Decision Date: 06 July 1905
• Citation: 104 N.W. 250,19 S.D. 534
• Parties: BLACKMAN et al. v. MULHALL et al.
• Court: South Dakota Supreme Court

104 N.W. 250

19 S.D. 534

BLACKMAN et al. v. MULHALL et al.

Supreme Court of South Dakota

July 6, 1905

Appeal from Circuit Court, McCook County.

Action by Janet Hansberger against James P. Mulhall and others impleaded with F. L. Blackman and another. From a judgment in favor of defendants Mulhall and others, defendants Blackman and another appeal. Affirmed.

Boyce & Warren, for appellants. Jepson & Jepson and P. J. Rogde, for respondents.

CORSON P. J.

This action was instituted by Janet Hansberger against James P and John Mulhall for the specific performance of a contract for the sale of a quarter section of land in McCook county and appellants, Blackman and Spaulding, were made codefendants, as claiming some interest in the property. James and John Mulhall claim the property under and by virtue of an administrator's sale made in 1887 in probate proceedings in the estate of Nathan P. Amy, deceased, whose death occurred at Sioux Falls in April, 1885. Appellant F. L. Blackman claims certain interest in the property as grantee of several of the heirs at law of the said Amy, and appellant Arthur Spaulding claims an interest in the property as heir at law of the said Amy, deceased, and, being a minor, appeared by his guardian. Blackman interposed a counterclaim and cross-bill against plaintiff and his codefendant. Arthur Spaulding also, in his answer, pleaded by way of counterclaim and cross-bill against the defendants James and John Mulhall, and prayed for judgment quieting his title to a portion of the premises. Upon counterclaims and cross-bills of James and John Mulhall the case was tried to the court without a jury, and, the court's findings being in favor of John Mulhall and against the other defendants, and a judgment entered thereon, Blackman and Spaulding have taken separate appeals to this court therefrom, but by stipulation both appeals have been considered together.

It will thus be seen that the action brought originally to enforce the specific performance of the contract by the plaintiff has been converted, in effect, into an action to quiet title as between the parties claiming by virtue of the sale made under the orders and decrees of the probate court as against the heir and grantee of the heir of the decedent. It is claimed by the appellants, Blackman and Spaulding, that the proceedings resulting in the sale of the property under the order and decree of the probate court was null and void, and that therefore James and John Mulhall acquired no title to the premises thereunder. The validity of the sale, therefore, is the principal question to be considered on this appeal.

It is contended by the appellants: (1) That there was no statutory ground shown authorizing the sale, in that it did not appear from the petition for the sale upon which the order of sale was made that there were any debts due and allowed from the intestate, and that therefore the court was without jurisdiction to make the order; (2) that the probate court never acquired jurisdiction of the estate by the appointment of an administrator, in that the appointment of Dr. J. B. Le Blond, one of the administrators, was made without a proper petition and notice; (3) that there was no proper order to show cause, and that the notice fixing the time and place for the hearing was not posted or published as required by law; (4) that the sale was void for the reason that notice of sale was not posted in three public places in the county of McCook, in which the land was situated; (5) the sale was void because not reported under oath to the probate court, as required by the Probate Code; (6) that the court erred in refusing to make the findings of fact and conclusions of law requested by the appellants; (7) that the respondents Mulhall failed to prove any title to the premises, for the reason that the deeds offered in evidence were not acknowledged so as to entitle them to record, no evidence given of the loss of the original, and it was not proved that the Security Land & Mortgage Company, through whom they claim title, was a corporation, or that the persons whose names were signed to the deeds as officers were in fact officers of the corporations, or that the seal of the corporation was affixed to the deeds by authority of the corporation, and that the records of the deeds were therefore inadmissible in evidence.

It is contended on the part of the respondents in support of the findings and judgment of the trial court: (1) That the proceedings for the sale of the property were substantially in compliance with the provisions of the Probate Code; (2) that the probate court, under the laws of this state, has been made, in effect, a court of general jurisdiction, and that to its records, orders, judgments, and decrees are to be accorded like force, effect, and legal presumption as to the records, orders, judgments and decrees of circuit courts, and therefore, the court having jurisdiction of the subject, its orders and judgments and decrees are conclusive in this action; (3) that the action is barred by the three-year limitation provided in the Probate Code, and by possession and payment of taxes for ten years, under the law of 1891.

The appellants, while conceding that the judgments and decrees of a probate court in conducting its ordinary business are to be accorded like force and effect as judgments and decrees of a circuit court, yet contend that in decreeing the sale of property for the payment of debts of the intestate it is acting as a court of special and limited jurisdiction, and its judgments and orders affecting such sales are to be regarded as made by a court having such limited jurisdiction. The questions presented are important, involving as they do the right of bona fide purchasers in good faith on the one side and the heirs at law of the deceased on the other. Section 26 of the Revised Probate Code reads as follows: "The proceedings of this court are construed in the same manner, and with like intendments, as the proceedings of courts of general jurisdiction, and to its records, orders, judgments and decrees, there are accorded like force, effect and legal presumption as to the records, orders, judgments and decrees of circuit courts;" and the last clause of section 202 provides: "But a failure to set forth the facts showing the sale to be necessary, will not invalidate the subsequent proceedings, if the defect be supplied by the proofs at the hearing, and the general facts showing such necessity be stated in the decree;" and section 332 provides: "Orders and decrees made by the county court, or the judge thereof, need not recite the existence of facts, or the performance of acts upon which the jurisdiction of the court or judge may depend, but it shall only be necessary that they contain the matters ordered or adjudged, except as otherwise provided in this title." It will thus be seen that the proceedings of the probate court and its records, judgments, and decrees are to be accorded like force, effect, and legal presumption as are accorded to the orders, judgments, and decrees of a circuit court, and that a failure to set forth the facts showing the sale to be necessary, or to recite the same in the order, will not invalidate the sale.

It is contended, as before stated, that the order or decree of the probate court authorizing the sale of the property is not conclusive against collateral attack, for the reason that the facts set out in the petition for the order did not show that there were any valid debts existing and properly allowed, due from the estate, and that all of the real property of the intestate was not described therein. This contention is clearly untenable, for the reason that the probate court had jurisdiction of the subject-matter, and was vested with the power to determine the sufficiency of the petition, and in making the order it must have necessarily determined that the petition was sufficient. This judgment or determination was, in our opinion, conclusive as against a collateral attack. Whether or not it was erroneous or irregular, and would or would not have been reversed upon appeal, it is not necessary now to decide. No appeal was taken, and the judgment is therefore conclusive in this action.

The question as to defects in the petition for a sale was fully considered in the case of Dennis v. Winter, 63 Cal 16. There section 1537, as amended in 1874, in the Probate Code of California, is identically the same as section 202 of the Probate Code of this state, and in discussing the questions arising under the Code of that state the Supreme Court of California says: "It appears from the evidence in this case that the land sued for was owned by one B. S. Dennis, under whom plaintiffs claim title as heirs, and that it was sold under an order of the probate court, the defendant becoming the purchaser. The questions in the case involve the regularity and validity of the proceedings in the probate court culminating in a sale and the execution of a deed to the purchaser by the administrator of the estate of B. S. Dennis, deceased. The defendant had judgment in the court below. *** The first point made relates to the sufficiency of the petition upon which the order of sale was made. It is important to bear in mind that this is not an appeal from a judgment or order of the probate court made in the course of administration, but it is a collateral attack upon the proceedings had in that court. If, therefore, the court (which was in that proceeding one of general jurisdiction) had jurisdiction to make the orders attacked, and to take the proceedings resulting in the sale of the land, its judgment and orders must be treated, for purposes of the present case, as conclusive of the matters determined by them. *** If the petition does...