Doran v. Kennedy
| Decision Date | 01 July 1913 |
| Citation | 122 Minn. 1,141 N.W. 851 |
| Parties | DORAN v. KENNEDY et al. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Koochiching County; C. W. Stanton, Judge.
Action by Ruth Doran against John A. Kennedy and others. From a judgment for plaintiff, defendants appeal. Reversed.
See, also, 117 Minn. 535, 136 N. W. 1134.
The issuance of letters of administration by the probate court of the county where a deceased person resided in his lifetime 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.
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.
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.
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, of International Falls, for appellants.
Wm. E. Culkin and John E. Samuelson, both of Duluth, 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] 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, 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] 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. Rev. St. U. S. § 2301 (U. S. Comp. St. 1091, p. 1406). 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 Land Dec. Dept. Int. 288; Ball v. Graham, 6 Land Dec. Dept. Int. 407; Case of James Brittin, 4 Land Dec. Dept. Int. 441; Case of Lipinski, 13 Land Dec. Dept. Int. 439; Clark v. Bayley, 5 Or. 343.
The homestead act (Rev. St. U. S. § 2291 [U. S. Comp. St. 1901, p. 1390]) 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, 25 L. Ed. 86;Robinson v. Caldwell, 67 Fed. 391, 14 C. C. A. 448;United States v. Freyberg (C. C.) 32 Fed. 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. Starr, 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. 155 (Gil. 131); St. Paul & S. C. Ry. 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 Sup. 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. Starr, supra; Case of Eberhard Querbach, 10 Land Dec. Dept. Int. 142 (a homestead case); St. Paul & Sioux City R. Co. v. Ward, 47 Minn. 40, 46, 49 N. W. 401;Sims v. Morrison, 92 Minn. 341, 100 N. W. 88. He may make a valid mortgage thereof. Lewis v. Wetherell, 36 Minn. 386, 31 N. W. 356, 1 Am. St. Rep. 674 (homestead case); Lang v. Moray, 40 Minn. 396, 42 N. W. 88,12 Am. St. Rep. 748. It is subject to taxation by the state and local authorities. Carroll v. Safford, 3 How. 441, 11 L. Ed. 671;Davenport v. Lamb, 13 Wall, 418, 20 L. Ed. 655;Wisconsin Central Ry. Co. v. Price County, 133 U. S. 496, 10 Sup. Ct. 341, 33 L. Ed. 687; Case of Joseph Ellis, 21 Land Dec. Dept. Int. 377; Smith v. Murphy's Heirs, 24 Land Dec. Dept. Int. 139; County of Polk v. Hunter, 42 Minn. 312, 44 N. W. 201;State v. Johnson, 111 Minn. 255, 263, 126 N. W. 1074;Staloch v. Holm, 100 Minn. 276, 111 N. W. 264,9 L. R. A. (N. S.) 712. It naturally follows that it will descend to his heirs according to the laws of the state wherein it is situate; and such is the law. Carroll v. Safford, 3 How. 441, 461, 11 L. Ed. 671; Strain v. Hostotlas, 17 Land Dec. Dept. Int. 293 (homestead case); Case of C. P. Cogswell, 3 Land Dec. Dept. Int. 23; Case of Daniel Witter, 3 Land Dec. Dept. Int. 38; County of Polk v. Hunter, 42 Minn. 312, 44 N. W. 201;Hayes v. Carroll, 74 Minn. 134, 137, 76 N. W. 1017;Rogers v. Clark Iron Co., 104 Minn. 198, 221, 116 N. W. 739. In Case of C. P. Cogswell, 3 Land Dec. Dept. Int. 23, supra, it is said: ‘It is a fact generally known that * * * such title, for the purposes of private and judicial sale, taxation, inheritance of real estate, and all other kindred objects, is treated by the courts, the local Legislatures, and individuals in the same manner as if a patent had issued.’
We hold that Edward O. Norton was the equitable owner of this land at the time of his death. It descended according to the laws of this state, and was part of his estate to be administered.
[3] 3. The next contention is that, even if this land was part of the estate of deceased, the probate court had no jurisdiction to sell it, because it was exempt under act of Congress. Rev. St. U. S. § 2296 (U. S. Comp. St. 1901, p. 1398), which was part of the original homestead act, provides that: ‘No lands acquired under the provisions of this chapter shall in any event become liable to the...
To continue reading
Request your trial