Davidson v. Wampler

• Decision Date: 04 November 1903
• Citation: 29 Mont. 61
• Parties: DAVIDSON v. WAMPLER et al.
• Court: Montana Supreme Court

29 Mont. 61

DAVIDSON

v.WAMPLER et al.

Supreme Court of Montana.

Nov. 4, 1903.

Appeal from District Court, Beaverhead County; M. H. Parker, Judge.

Action by Milton L. Davidson against Reese B. Wampler and others. From a judgment for plaintiff, and an order denying a motion for a new trial, defendants appeal. Reversed.

Action by the plaintiff to foreclose a mortgage upon certain real estate situate in Beaverhead county. The court entered judgment in accordance with the prayer of the complaint. Defendants have appealed from the judgment and from an order denying a new trial.

The facts necessary to an understanding of the controversy are the following: Some time prior to March 20, 1886, John B. Wampler died intestate in Beaverhead county, leaving surviving him his widow, Minnie A. Wampler, and two minor children, May and Walter Wampler. On March 20, 1886, the said Minnie A. Wampler was, by the probate court of Beaverhead county, duly appointed guardian of the minor children, and, after qualifying, acted in that capacity until her death. At the time of his death John B. Wampler was the owner of the equitable title to certain lands in Beaverhead county by virtue of desert land and pre-emption entries thereof under the laws of the United States. To secure the legal title thereto for the benefit of the estate, it was necessary that final proof of a compliance with the law be made. In order for the guardian to be able to do this, it was necessary that she should make certain expenditures upon the lands in irrigating, cultivating, and reclaiming them. She therefore arranged with the plaintiff for a loan of $1,200, to be repaid within 30 days, upon an express stipulation that, in case of default in payment, she would obtain an order from the probate court permitting her to mortgage the lands to secure the loan. If the mortgage should be authorized by the court, the loan was to be repaid in three years at 12 per centum per annum, it being the purpose of the guardian to secure in the meantime patents from the United States government. The patents were issued, but the loan was not repaid. Thereupon, in order to carry out her agreement, the guardian applied to the district court for authority to execute the mortgage. The court, after notice, granted the order on November 26, 1890, and the guardian was, by its terms, authorized “to execute in her representative capacity a mortgage” upon all the lands to which she had secured patent. She thereafter, on May 8, 1891, executed to the plaintiff her promissory note “to the use and benefit of May 8, 1891, executed to the plaintiff her promissory note “to the use and benefit of May and Walter Wampler, minors,” for the entire sum of $1,200, due in three years, at the agreed rate of interest, and to secure its payment executed a mortgage upon the interests of the minors only. It appears that the money thus secured was expended for the benefit of the estate generally, the guardian being entitled in her own right to a one-third interest therein under the laws of succession, and each of the minors to a like interest. After the death of Minnie A. Wampler, Reese B. Wampler was appointed guardian of the minors, and was acting as such at the commencement of this action. He appeared and made defense for the minors. The district court directed in its decree a sale of the entire tract of land, and authorized the docketing of a judgment against the minors personally for any deficiency found to exist after appropriating the proceeds of the sale to the payment of the debt and the expenses of foreclosure. Presumably the decree embraced all the land upon the theory that the minors became owners of the one-third interest of their mother at her death under the law of succession, the complaint containing an allegation that such was the fact.

Henry R. Melton and Pemberton & Maury, for appellants.

Jno. G. Willis, for respondent.

BRANTLY, C. J. (after stating the facts).

1. Suggestion was made at the hearing that this court has no jurisdiction of this appeal, because it does not appear from the certificate of the clerk attached to the transcript that the undertaking on appeal has been “properly” filed as required by section 1739 of the Code of Civil Procedure, and a motion was made to dismiss the appeal on that ground. The word “properly” is omitted from the certificate, and in lieu thereof is inserted the date of the filing of the undertaking. The term, as used in the statute, has reference to the time of the filing of the undertaking; and if it appears by fair intendment from the wording of the certificate, or by a comparison of the date of its filing with that of the filing of the notice of appeal, that the undertaking has been filed in time, this is sufficient. In this case the notice was served and filed on April 12, 1901. The certificate states that the notice was filed on the same day. In other respects the certificate conforms to the requirements of the statute. The motion to dismiss must, therefore, be overruled.

2. Many questions are raised and discussed in the briefs of counsel upon the merits of this appeal. We shall notice but one of them, as we deem it the fundamental question involved, and a correct solution of it conclusive against the decree of the district court. Counsel for defendant challenge the validity of the note and mortgage on the ground that a probate court had no power to authorize the guardian to incumber the estate at all; hence, the note and mortgage executed under authority granted by the order are void, and furnish no foundation for the decree. At the time the order was made and the note and mortgage were executed, jurisdiction of all matters of probate and of the administration and control of estates of minors was vested in the district courts of the respective counties of the state, such jurisdiction having been transferred under the Constitution to these courts from the probate courts established under the acts of Congress creating the territory. Act May 26, 1864, c. 95, 13 Stat. 85; Act March 2, 1867, c. 150, 14 Stat. 426; Const. art. 8, § 11; Id. art. 20, Schedule, § 4. It was provided in the former of these acts that the powers of the probate courts should be limited by law. Under this charter, commonly known as the “Organic Act,” the Legislature of the territory was authorized to enact laws defining and limiting the powers of these courts, or granting them additional powers, so long as these laws did not conflict with the express provisions of the organic act itself and the Constitution and general laws of the United States. Perris v. Higley, 87 U. S. 375, 22 L. Ed. 383. In pursuance of the authority so conferred, the Legislature of the territory enacted the probate practice act, which was in force at the time the order in question was made. Comp. St. 1887, div. 2. These provisions of law were regarded by the Supreme Court of the territory as limitations upon the powers of probate courts, and that court declared the rule to be that probate courts were courts of special and limited jurisdiction, possessing no powers other than those expressly conferred by statute. In other words, the acts of Congress and the Legislature in pursuance thereof were the only authority under which those courts could proceed, and, if the particular power sought to be invoked was not therein granted, the court could not proceed. This is the effect of the decision in Chadwick v. Chadwick 6 Mont. 566, 13 Pac. 385, and the rule thus established is recognized distinctly in the subsequent cases of In re Higgins Estate, 15 Mont. 502, 39 Pac. 506, 28 L. R. A. 116,State ex rel. Bartlett v. Dist. Court, 18 Mont. 481, 46 Pac. 259, and State ex rel. Shields v. Dist. Court, 24 Mont. 1, 60 Pac. 489. These latter cases also recognize the rule that when, under the Constitution, the jurisdiction of these courts was transferred to the district courts, it was not enlarged, but it was the same as theretofore, though exercised by courts of general jurisdiction. If, therefore, there was no authority conferred by the statute...