Carter v. Frahm

• Decision Date: 06 May 1913
• Citation: 31 S.D. 379,141 N.W. 370
• Parties: LUCY J. CARTER et al., Plaintiffs and respondents, v. FRANK FRAHM et al., Defendants and appellants.
• Court: South Dakota Supreme Court

31 S.D. 379, 141 N.W. 370 (1913)

LUCY J. CARTER et al.,

Plaintiffs and respondents,

v. FRANK FRAHM et al.,

Defendants and appellants.

South Dakota Supreme Court

Appeal from Circuit Court, Beadle County, SD

Hon. Alva E. Taylor, Judge

Affirmed

Rice & Benson

Attorneys for Appellants.

Gardner, Fairbank & Churchill

Attorneys for Respondents.

Opinion filed May 6, 1913

McCOY, J.

It appears from the record in this case that on the 18th day of November, 1898, one John B. Mott, a resident of Beadle county, died seised of a quarter section of land and some personal property, and left surviving him three heirs, a son, Frank E. Mott, and two daughters, Lucy J. Carter and Nellie Moore; that neither of these three heirs then resided in this state. On the 28th day of November, 1898, one Cannard, on the request of said crank E. Mott, petitioned the county court of said Beadle county to be appointed administrator of the estate of said John B. Mott, deceased; the said Frank E. Mott waiving the said appointment himself in favor of said Cannard. Subsequently, on the 10th day of December, 1898, by decree and order of said court, the said Cannard was appointed such administrator, and thereafter qualified and took possession of said real estate and personal property. On the 3d day of November, 1900, the said county court rendered and entered an order or decree of final distribution as follows:

"Said administrator having fully and completely administered said estate, and having paid all debts and funeral expenses, and fully complied with the law in relation to the administration of estates, and having made and filed his final account, and having petitioned this court for his discharge as such administrator, and it appearing from the records and files and papers in this matter, as well as from testimony given to the court, that Lucina Carter, formerly Lucina Mott, and Fraza Mott (Nellie Moore), daughters and two heirs of John B. Mott, deceased, have been continuously absent from the state of South Dakota for more than seven years next preceding the date hereof, and that they each and both of them are now absent from the state of South Dakota, and that their whereabouts is to all persons wholly unknown, and also whether they or either of them left any heirs is also unknown, and it further appearing that Frank E. Mott, of Oconto, Wis., is the only living heir of John B. Mott, deceased, and as such is entitled to all the real estate and personal property of said John B. Mott, and it further appearing that there is now in the hands of said administrator for distribution, of the personal property of the said John B. Mott, deceased, the sum of $175, and that the said deceased died seised and possessed of the southeast quarter of section 6, township 108, range 60, in Beadle county, and it further appearing that said estate is ready for distribution, and that said administrator should be discharged and released from further duties. Therefore, it is ordered, adjudged, and decreed that all of said real estate and personal property of said John B. Mott be set over, assigned to, and vested in Frank E. Mott, the only heir of said John B. Mott, deceased."

Thereafter the said Frank E. Mott transferred and conveyed said land to said administrator, Cannard; and said Cannard transferred and conveyed the same to one DeBanche; and said DeBanche conveyed the same to defendant Ronnfeldt; and said Ronnfeldt conveyed the same to one Greve, taking back thereon a mortgage; and said Greve thereafter conveyed the said title to defendant Frahm.

On the 8th day of April, 1910, plaintiffs, Lucy J. Carter an Nellie Moore, instituted this action in equity to vacate and set aside said decree of distribution, on the ground that the said county court was wholly without jurisdiction to render and enter the same, alleging among other things the foregoing facts, and alleging said judgment, and also alleging the invalidity thereof, and also facts tending to show the same void, and prayed that defendants be compelled to appear and set out their claims to said land, and that an undivided one-third each therein be quieted in each of plaintiffs. Defendants Frahm and Ronnfeldt appeared and answered, alleging said Frank E. Mott to have been the sole owner of said land under and by virtue of said decree of distribution made and entered on November 3, 1900, and that they succeeded to the said title of said Frank E. Mott, by various subsequent mesne conveyances. Plaintiffs made and filed reply to defendants' counterclaim of title. Trial was had before the court without a jury, and findings made and judgment rendered in favor of plaintiffs, and defendants appeal, assigning various errors. The principal contention of defendants is that the evidence is not sufficient to support the findings, and that the conclusions and judgment are contrary to law.

The court, among other things, found:

"That the county judge made an order on the 28th day of November, 1898, directing that the petition be heard at his office in Huron, on the 10th day of December, 1898, and that notice thereof be given by publishing a copy of the order for three successive weeks, once in each week, prior to the said hearing, in the Daily Huronite, a newspaper published in said county. This order was not filed in the county court until the 10th day of December, 1898. That a notice was signed by the county judge directed to Frank E. Mott, Lucina Carter, and Fraza Mott, heirs at law and next of kin of John B. Mott, deceased, stating that the petition had been filed and that the 10th day of December, 1898, at the office of the county judge in the city of Huron, S.D., had been set for hearing the said petition. This notice was published in the Daily Huromte ten successive days, once each day; the first publication being on the 29th day of November, 1898, and the last publication on the 9th day of December, 1898. That on the 4th day of October, 1906, the said Desire Cannard filed in the county court a petition stating that the estate had been fully administered, all debts paid and the expense of administration, as will appear from his final report, and asking that a time and place be fixed for examining and allowing of said amount and that notice thereof be given agreeable to the statute in such case made and provided, which petition was duly verified. That no order was ever made setting a time for hearing the said petition, but that a notice was issued by the judge on the 4th day of October, 1900, stating that the administrator had presented his final account and that the 3d day of November, 1900, had been set for the time of hearing said account, and that at the time of the settlement of said account the residue of the estate would be distributed to such persons as by law were entitled thereto, but there is no evidence in the probate records that the said notice was ever served upon any one or published in any manner or posted in any manner. That the county court of Beadle county had no jurisdiction to make and enter the order of distribution, and that the said order is not a final determination of the rights of the plaintiffs and defendant in said land, and that the plaintiffs are not barred by the said order and the probate proceedings in the estate of John B. Mott, deceased, from asserting their title and interest in the said land against the defendant in this action." There is but one vital question before this court for determination upon the merits, and that if whether or not the county court had jurisdiction over the subject matter of the interests of plaintiffs in said land, in the said probate proceedings, so as to finally conclude plaintiffs by said decree of distribution. Plaintiffs' title to said land originated on the death of John B. Mott. Immediately at the instant of his death his three heirs each succeeded to an undivided one-third interest each in and to said real-estate, by the law of succession, which title, however, was subject to administration, and might have been, by administration, wholly divested. No title originates from a decree of distribution, but such decree has the effect of releasing the title, of which the heir became invested on the death of the ancestor, from the conditions of administration to which it was subject, and furnishes the heir with legal evidence to establish his title. Church, Probate Law & Prac. pp. 1328, 1350, 1364, 1370; Bates v. Howard, 105 Cal. 173, 38 Pac. 715; Estate of Kennedy, 129 Cal. 384; 62 Pac. 64; Chever v. Ching Hong Pay, 82 Cal. 68, 22 Pac. 1081; Weir v. Bagby, 72 Kan. 67, 82 Pac. 585, 7 Ann.Cas. 702. The title of the heir, under the law of succession of this state, originates on the death of the ancestor by virtue of section 1093, Civil Code. Plaintiffs could only be finally concluded and divested of their said titles by a court having jurisdiction.

The administration of an estate under the probate jurisdiction of a court, which involves the appointment of an administrator and culminates in a final decree of distribution, is a proceeding in rem, or, as said by some, quasi in rem. 23 Cyc. 1411; Mulcahey v. Dow, 131 Cal. 73, 63 Pac. 158; Hanley v. Hanley, 114 Cal. 69o; 46 Pac. 736. Plaintiffs were entitled to notice, either actual or constructive, of the administration proceedings. Actual notice was not necessary. Constructive notice alone was sufficient. The proceedings being in rem, it was not necessary that the court have jurisdiction of the persons of plaintiffs. In an action in rem it is just as essential that constructive notice be given, in the manner required by law, to give the court jurisdiction over the subject-matter, as it is that personal service be made in an action in personam to give the court jurisdiction over the person of a defendant. Herman on Estoppel & Res Judicata, § 291. ' In Woodruff v. Taylor, 20 Vt. 65, the court among other things said:

"The object and purpose of a proceeding purely in rem is to ascertain...