Clark v. Rossier

• Decision Date: 03 October 1904
• Citation: 10 Idaho 348,78 P. 358
• Parties: CLARK v. ROSSIER
• Court: Idaho Supreme Court

78 P. 358

10 Idaho 348

CLARK v. ROSSIER

Supreme Court of Idaho

October 3, 1904

PROBATE COURTS-JURISDICTION-VERITY OF JUDGMENTS AND ORDERS IN MATTERS OF PROBATE AND APPOINTMENT OF GUARDIANS.

1. Under the provisions of section 21, article 5 of the state constitution, probate courts are made courts of record, and are given original jurisdiction in all matters of probate settlement of estate, of deceased persons, and appointment of guardians, and their orders and judgment in regard to those matters, cannot be attacked collaterally.

2. The remedy for one aggrieved by an order or judgment by a probate court in said matters is in said court by proper motion or by appeal.

(Syllabus by the court.)

APPEAL from District Court of Lemhi County. Honorable J. M. Stevens Judge.

Action collaterally attacking the sale of certain mining claims under an order of the probate court. Judgment for the defendants. Affirmed.

Judgment affirmed. Costs of this appeal awarded to the respondents.

F. J Cowan and Redwine & Boyd, for Appellant.

Section 2 of article 5 of the constitution vests the judicial power in all matters of probate, settlement of estates of deceased persons, and appointment of guardians upon the probate courts, and it makes these courts courts of record. It is to be here observed that the constitution does not in any place confer any authority or jurisdiction upon the probate judge in the matters enumerated, but upon the probate court. And in line with this authority the statutes of Idaho at section 5491, provide that no sale of any property of an estate is valid unless made under order of the probate court. If the legislature intended anything else, then this act, in so far as it attempts to confer jurisdiction upon the probate judge is void. For, obviously, the legislature had no authority to confer jurisdiction upon any other tribunal or any other officer in probate matters than that designated by the constitution. (Spencer Creek Water Co. v. Vallejo, 48 Cal. 70; Larco v. Casaneuava, 30 Cal. 564; Chollar M. Co. v. Wilson, 66 Cal. 374, 5 P. 670.) In most states the proceedings for the sale of real estate are adversary proceedings. In such proceedings parties defendant, as well as plaintiff, are essential. As the heirs occupy the position of defending parties, the petition should show who they are, in order that they may be brought into court. (Freeman on Void Judicial Sales, sec. 11, citing Morris v. Hogle, 37 Ill. 150, 87 Am. Dec. 243; Hoard v. Hoard, 41 Ala. 590; Turney v. Young, 22 Ill. 253; Guy v. Pierson, 21 Ind. 18.) To acquire jurisdiction to act, to order, decree or pass judgment, a court must have jurisdiction in two ways--of the thing involved and of the persons interested. This is primary and needs no citation of authorities to support it. If it fail in either way to acquire jurisdiction and that fact appears upon the face of its proceedings, as in the case at bar, its order, decree or judgment is a nullity and may be attacked at any time, at any place or in any manner, either directly or collaterally. (19 Am. & Eng. Ency. of Pl. & Pr., pp. 924-926; Black on Judgments, sec. 270; King v. Randlett, 33 Cal. 318; Ex parte Sawyer, 124 U.S. 200, 8 S.Ct. 482, 31 L.Ed. 402; Pryor v. Downey, 50 Cal. 388; Gibson v. Roll, 27 Ill. 88, 30 Ill. 172; Root v. McFerrin, 37 Miss. 17; Bloom v. Burdick, 1 Hill, 134; Townsend v. Tallant, 33 Cal. 45, 91 Am. Dec. 617.) When one party has acquired the legal title to property to which another has a better right, a court of equity will convert him into a trustee of the true owner, and compel him to convey the legal title. (Monroe Cattle Co. v. Becker, 147 U.S. 47, 13 S.Ct. 217, 37 L.Ed. 72; Turner v. Sawyer, 150 (U.S.) 578, 14 S.Ct. 192, 37 L.Ed. 1189; Cunningham v. Ashley, 55 U.S. (14 How.) 377, 14 L.Ed. 462.) The proper relief is not the amendment of the patent, but a decree compelling conveyance to rightful owner. (Silver v. Ladd, 74 U.S. 219, 19 L.Ed. 138; Wilson v. Castro, 31 Cal. 421; Bludworth v. Lake, 33 Cal. 256; Haven v. Haws, 63 Cal. 452; Salmon v. Symonds, 30 Cal. 307.) Upon the question as to whether the court should consider the original complaint and first amended complaint as a part of the record, we desire to cite the court to the following cases which hold that those papers have performed their function in the case when the amended pleading is filed and that thereafter all proceedings are based upon the amended pleading: Wooddy v. Jamieson, 4 Idaho 452, 40 P. 61; People v. Hunt, 1 Idaho 436; Barber v. Reynolds, 33 Cal. 497.

John H. Padgham, W. B. Heyburn and John P. Gray, for Respondents.

Upon the validity of the sales of the property of deceased persons depend many of the titles to the realty in every state. There has been many times in the growth of our system of jurisprudence when the courts have required the strict compliance with the technical rules and regulations of the statutes in order to make these sales valid, but the injustice and the danger and inconvenience which arose from this strict adherence to the requirements of the statutes has resulted in a more just rule, and one which has received its strongest approbation in the decisions of the supreme court of the United States, and which has now been followed and approved by the courts of practically all of the states. The rule in substance is: That the decree of the probate court where it has jurisdiction of the thing, cannot be attacked for irregularities in the exercise of that jurisdiction except in that court alone, or on an appeal from its decision. The great weight of modern authority holds that the same verity must attach to the judgments of probate courts as to the judgments of any other courts, and under our constitution, within the domain of their jurisdiction over probate matters, they are not more limited than is the district court in the exercise of its original jurisdiction in common-law and equity cases. (Grignon v. Astor, 2 How. 319, 11 L.Ed. 283.) A court of general jurisdiction is one whose judgment is conclusive and which is competent to decide on its own jurisdiction and exercise it to a final judgment without setting forth the evidence. The record of such a court is absolute verity. Such a court is the probate court of this state. (Gray's Admr. v. Cruise, 36 Ala. 562; Glendenning v. McNutt, 1 Idaho 592; Horner v. Bank, 1 Ind. 130, 48 Am. Dec. 358; Hanna v. Yocum, 17 Ill. 388.) In no court has the question of the validity of the sale of the property of a deceased person received the thoughtful and careful consideration which has been given to the question by the supreme court of the United States. (Thompson v. Tolmie et al., 2 Pet. 157, 7 L.Ed. 381, decided in 1829; 2 Pet. 169, 7 L.Ed. 385; Jenkins v. Stanley, 11 Mass. 227; Beauregard v. New Orleans, 18 How. 503, 15 L.Ed. 469.) In the orphans' court and all the courts which have power to sell the estates of decedents, their action operates on the estate, not on the heirs of the intestate. A purchaser claims not their title, but one paramount. The estate passes by operation of law. (Stoddard v. Chambers, 2 How. 310, 11 L.Ed. 280; McPherson v. Cunliff, 11 Serg. & R. 426; Wyman v. Campbell, 6 Port. 219, 249; Cooper v. Reynolds, 10 Wall. 308, 19 L.Ed. 931; Hall v. Law, 102 U.S. 461, 26 L.Ed. 217; Davis v. Gaines, 104 U.S. 386, 26 L.Ed. 758.) A sale cannot be collaterally attacked for failure of the administrator to give the statutory notice of sale. (Mathewson's Heirs v. Hearin, 29 Ala. 210; McNare v. Hunt, 5 Mo. 301; Tutt v. Boyer, 51 Mo. 425; Capt v. Stubbs, 68 Tex. 222, 4 S.W. 467; Spurgen v. Bowers, an Iowa case, reported in 82 Iowa 187, 47 N.W. 1029.) The confirmation or approval of the sale by the court is the judicial ascertainment of its validity and legality, and the decree so made cannot thereafter in any collateral proceeding be questioned. (Woerner on American Law of Administration, sec. 478; Florentine v. Barton, 2 Wall. 216, 17 L. ed., 783; Davis v. Gaines, 104 U.S. 391, 26 L.Ed. 759; Mathews v. Densmore, 109 U.S. 220, 3 S.Ct. 126, 27 L.Ed. 913; Holmes v. Oregon & Cal. R. Co., 9 F. 236, 7 Saw. 380; McArthur v. Allen, 3 F. 322; Daily v. Doe, 3 F. 916; Lorch v. Aultman, 75 Ind. 166; Barnett v. Van Meter, 7 Ind.App. 45, 33 N.E. 670; Cooper v. Sunderland, 3 Iowa 114, 66 Am. Dec. 52; Howard v. Moore, 2 Mich. 234; Lafferty v. People's Sav. Bank, 76 Mich. 35, 43 N.W. 39.) While the direct question now before the court has not been expressly determined or strictly put before this court heretofore, the decisions of the court in the cases of Glendenning v. McNutt, 1 Idaho 592, and State ex rel. Chemung Min. Co. v. Cunningham, 6 Idaho 113, 53 P. 451, announce the adherence of this court to the rule of the supreme court of the United States. (People ex rel. Chemung Min. Co. v. Cunningham, 6 Idaho 113, 53 P. 451.) Subdivision 8 of section 3862 of the Revised Statutes of Idaho gives to every court the power to amend and control its proposed orders so as to make them conformable to law and justice. This court has held that this is a power which the probate court may exercise. (People ex rel. Chemung Min. Co. v. Cunningham, supra.) When a plaintiff comes into a court of equity alleging title in fee to land to be in the defendant and asks that such title be surrendered to him, it is incumbent upon such plaintiff to offer to do all the equity that lies in his power. Appellants have offered to do only a small part of what they can do or should do; they have not offered to pay respondents for the assessment work done on the mining claims; the petition for sale said it was necessary, and the order of sale required it to be done; they have not offered to pay for such permanent improvements as may have been placed on said ground by respondents, and owing to...