Doran v. Kennedy
| Decision Date | 29 May 1913 |
| Docket Number | 18,009 - (142) |
| Citation | 141 N.W. 851,122 Minn. 1 |
| Parties | RUTH DORAN v. JOHN A. KENNEDY and Others |
| Court | Minnesota Supreme Court |
Action in the district court for Koochiching county to determine that defendants had no title to vacant and unoccupied land. The complaint alleged that the land was patented to Edward O Norton after his death, and sold by the administrator of Norton's estate pursuant to the license and order of the probate court for that county to pay debts contracted by the intestate prior to the issuance of the patent to him; that the land was exempt from sale for the indebtedness by virtue of R.S. (U.S.) § 2296, and amendatory and supplemental acts. The separate answer of Paul Kennedy alleged that the probate court had full jurisdiction over the estate; that all its orders were made regularly and no appeal was taken by plaintiff or anyone in her behalf; that defendant was an innocent purchaser for value and was never notified by the records of the probate court, or in any other manner, of the claim made by plaintiff. It further alleged that defendant John Kennedy loaned to Norton the money with which the latter made his final proof, and that such sum constituted the claim of that defendant against the estate and the loan was made the day before Norton submitted final proof on his claim. It further alleged that the answering defendant held title to the land by virtue of a decree of the probate court from which decree no appeal had been taken by plaintiff or anyone in her behalf. The separate answer of John Kennedy set out the facts in reference to his appointment as administrator of the estate, the sale of the land under license of the probate court, and alleged that plaintiff had full knowledge of the facts alleged in his answer long prior to the application for the appointment of an administrator.
The case was tried before Stanton, J., who made findings of fact and as conclusion of law found that plaintiff was the owner in fee simple of the land, and that neither of defendants had any interest therein or lien thereon. From the judgment entered pursuant to the order for judgment, defendants appealed. Reversed.
Letters of administration -- collateral attack.
1. The issuance of letters of administration by the probate court of the county where a deceased person resided in his life time is conclusive in a collateral action of the regularity of the proceedings resulting in their issuance, unless want of jurisdiction appears affirmatively on the face of the record.
Public land -- interest of person entitled to patent.
2. A person who has complied with all the requirements necessary to entitle him to a patent of land from the United States government is regarded as the equitable owner thereof. In the event of his death, the land will form part of his estate and will descend in accordance with state laws. This applies to a homestead entryman who has commuted to a cash purchase and has made final proof and payment.
Sale of such land under order of probate court.
3. The probate court has jurisdiction over such land. It may rightfully order it sold to pay certain demands. A sale of such land cannot be attacked in a collateral action to quiet title, on the ground that the probate court improperly ordered it sold. The heirs had one day in court when the orders pertaining to such sale were considered by the probate court. They are entitled to no more.
Waiver of homestead right.
4. A person entitled to a homestead exemption under the Federal law may waive it by his voluntary act, or by acquiescing in a sale of the land to pay debts from which it is in fact exempt.
F. J McPartlin, for appellant.
William E. Culkin and John E. Samuelson, for respondent.
The administrator of the estate of Edward O. Norton, deceased, sold the land here in controversy under license issued by the probate court of Koochiching county. The purchaser was George N. Millard. He conveyed to the defendant Paul Kennedy. Plaintiff is one of the heirs of said Norton and she has acquired the interest of all the other heirs. She brings this action to quiet title to the land. This is accordingly not an appeal from any order of the probate court concerning the sale. It is an independent action. The attack here made upon the orders of the probate court is a collateral attack.
The probate court is a court of general jurisdiction. In the absence of fraud, its orders and decrees cannot be attacked in a collateral action, except in case of want of jurisdiction of the court to make them, and then only when the want of jurisdiction appears affirmatively on the face of its record. This is well settled. Davis v. Hudson, 29 Minn. 27, 11 N.W. 136. It is the contention of plaintiff that the sale of this land in the probate proceeding was void; that the court had no jurisdiction to appoint the administrator at all; and that it had no jurisdiction to order a sale of this land.
1. The first contention is that the probate court had no jurisdiction to appoint an administrator. We cannot so hold.
The complaint alleged that defendant John A. Kennedy was appointed administrator, and the court so found. In neither the complaint nor the findings is there any suggestion that the appointment was irregular. In a collateral proceeding, such as this, the letters of administration issued by the probate court of the county where decedent resided are conclusive of the regularity of the proceedings resulting in their issuance, unless want of jurisdiction appears affirmatively on the face of the record. Pick v. Strong, 26 Minn. 303, 3 N.W. 697; Moreland v. Lawrence, 23 Minn. 84. Counsel for plaintiff argue that the existence of property of deceased was essential to the jurisdiction of the probate court to appoint an administrator, Fitzpatrick v. Simonson Bros. Mnfg. Co. 86 Minn. 140, 90 N.W. 378; that the land in controversy was not the property of deceased and that he left none other. There is no pretense at either pleading or proof that the record of the probate court showed that deceased left no other property or that such was the fact. It will appear, however, from the next paragraph that, in our judgment, the land in controversy was the property of deceased at the time of his death.
2. This brings us to plaintiff's next contention, that the probate court could not authorize a sale of this land, because it was not part of the estate of the deceased. We cannot sustain this contention. The facts are as follows:
On November 12, 1904, deceased made a homestead entry upon this land. He thereafter commuted his homestead entry to a cash purchase, as he was authorized by law to do. R.S. (U.S.) § 2301. [1]
On April 10, 1906, he made final commutation proof upon said homestead entry and made full payment to the United States for the land. On September 6, 1906, he died. On March 17, 1908, the receipt of receiver of the United States land office was issued in his name. On September 8, 1908, a patent was issued by the United States government in his name. On March 2, 1909, letters of administration were issued.
Although the homestead entry was commuted to a cash purchase, it still retained the incidents of a homestead entry, for the commutation of a homestead claim is the consummation of the homestead right and not an exercise of a pre-emptive one. Cotton v. Struthers, 6 L.D. 288; Ball v. Graham, 6 L.D. 407; Case of James Brittin, 4 L.D. 441; Case of Lipinski, 13 L.D. 439; Clark v. Bayley, 5 Ore. 343.
The homestead act (R.S. [U.S.] § 2291) [1] provides that if the person making homestead entry dies before making final proof, such proof may be made by his widow, or, in case of her death, by his heirs or devisees. In such case the right to the patent accrues first to the widow, or, if none, then to the heirs or devisees. The land is no part of the estate of the entryman and does not descend as such. It is disposed of in accordance with the act of Congress, and the patentee takes his title not by descent from the ancestor, but by purchase from the United States government.
But after final proof the rule is different: It is a general rule that: "A person who complies with all the requisites necessary to entitle him to a patent * * * is to be regarded as the equitable owner" of the land. Wirth v. Branson, 98 U.S. 118, 121, 25 L.Ed. 86; Robinson v. Caldwell, 67 F. 391, 14 C.C.A. 448; United States v. Freyberg, (C.C.) 32 F. 195. When the right to a patent has once become vested, it is equivalent, so far as the government is concerned, to a patent actually issued. The execution and delivery of the patent after the right to it is complete are the mere ministerial acts of the officer charged with that duty. Stark v. Starrs, 6 Wall. 402, 18 L.Ed. 925; Barney v. Dolph, 97 U.S. 652, 24 L.Ed. 1063; Simmons v. Wagner, 101 U.S. 260, 25 L.Ed. 910; Camp v. Smith, 2 Minn. 131 (155); St. Paul & S.C.R. Co. v. Ward, 47 Minn. 40, 46, 49 N.W. 401, (homestead case). Hayes v. Carroll, 74 Minn. 134, 137, 76 N.W. 1017, (homestead case).
Such person is not prejudiced by the issuance of a patent to another. Wirth v. Branson, supra; Cornelius v Kessel, 128 U.S. 456, 9 S.Ct. 122, 32 L.Ed. 482; Robinson v. Caldwell, supra; United States v. Freyberg, supra. He may sell his interest notwithstanding statutes which prohibit a sale before a patent issues. Barney v. Dolph, supra; Simmons v. Wagner, supra; Stark v. Starrs, supra; Case of Eberhard Querbach, 10 L.D. 142, (a homestead case); St. Paul & S.C.R. Co. v. Ward, supra; Sims v. Morrison, 92 Minn. 341, 100 N.W. 88. He may make a valid mortgage thereof. Lewis v. Wetherall, 36 Minn. 386, 31 N.W. 356, 1 Am. St. 674, (homestead case); Lang v. Morey, 40 Minn. 396, 42 N.W. 88, 12 Am. St. 748. It is subject to taxation by the...
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