Equitable Life Assur. Society v. Lunning

• Citation: 64 S.D. 168,265 N.W. 876
• Decision Date: 21 March 1936
• Docket Number: 7830
• Parties: EQUITABLE LIFE ASSURANCE SOCIETY OF THE US, Respondent, v. CHRISTINA LUNNING, Individually, and as Guardian of the Estate of Burdell Lunning, a minor, et al., Appellants.
• Court: Supreme Court of South Dakota

64 S.D. 168

265 N.W. 876

EQUITABLE LIFE ASSURANCE SOCIETY OF THE US, Respondent,

v.

CHRISTINA LUNNING, Individually, and as Guardian of the Estate of Burdell Lunning, a minor, et al., Appellants. South Dakota Supreme Court Appeal from Circuit Court, Lincoln County, SD Hon. John T. Medin, Judge #7830—Affirmed W.A. Morris, B.O. Stordahl, Sioux Falls, SD Attorneys for Appellants. Boyce, Warren & Fairbank, Sioux Falls, SD Attorneys for Respondent. Opinion Filed Mar 21, 1936

CAMPBELL, Judge.

In 1923 Christina Lunning was the duly appointed, qualified, and acting administratrix of the estate of Helge H. Lunning, deceased, which estate was in process of probate in the county court of Lincoln County, SD. On October 30, 1923, said administratrix filed in the county court of Lincoln County her petition (which contained all the information, particulars and recitals contemplated by statute. Sections 3334, 3425, RC 1919), asking leave and authority to mortgage certain realty of said estate for the sum of $24,000. Due notice of hearing upon said petition was given to the parties and in the manner and form required by law, and as a result of hearing thereon the county court of Lincoln County, on November 27, 1923, duly made and entered its order to the following effect:

“It is therefore ordered by the court that said Christina Lunning, as administratrix of the estate of said deceased, be and she is hereby authorized to borrow the sum of $24,000 and to execute her promissory note therefor and a mortgage in form as mentioned in said petition to secure the payment thereof on the property hereinafter described; said note to be payable five years from date, in lawful money of the United States and to bear interest from date, not exceeding 5 1/2 percent per annum, and that the buildings on said premises may be insured for further security of the lender, provided that the said administratrix pay only debts properly chargeable against the estate, and that the balance of said loan be distributed among the heirs according to law.

Pursuant to the authority of this order of the county court the administratrix borrowed the sum of $24,000, executing therefor her promissory note as such administratrix, together with a mortgage upon realty of the Helge H. Lunning estate securing the same.

Plaintiff, Equitable Life Assurance Society, purchased this note and mortgage from the payee therein named for full value before maturity and has ever since continued to be the owner and holder thereof. Default having occurred, plaintiff, in 1933, instituted this action in the circuit court of Lincoln County, SD, to foreclose the mortgage, defendants being interested in said realty as the heirs and distributees of Helge H. Lunning, deceased, or as successors in interest of such heirs.

The complaint was in the usual form for foreclosure. By their answers the defendants contend that the note and, mortgage were void in their inception and that the order of the county court of Lincoln County purporting to authorize the execution thereof was likewise void because it was beyond the power or jurisdiction of the county court of Lincoln county to authorize the ‘borrowing of money and mortgaging of assets of the estate for the purposes for which this administratrix desired to borrow said money and mortgage said assets as disclosed by her petition.

The matter coming on for trial, findings, conclusions, and, judgment were in favor of the plaintiff, awarding foreclosure of the mortgage, from which judgment and from a denial of their application for new trial defendants have appealed.

That the answers interposed in the court below constitute a collateral attack upon the order of the county court of Lincoln County dated November 27, 1923, authorizing the execution of the mortgage sought to be foreclosed is perfectly clear. One of the issues between the parties in the court below and on this appeal is whether such order is open to collateral attack. Respondent maintains that it is not, while appellants contend that it is, citing and relying upon the language of this court in Reddin v. Frick (1929) 223 N.W. 50.

Section 20, art. 5 of the Constitution of this state provides in part that:

“County courts shall be courts of record and shall have original jurisdiction in all matters of probate, guardianship and settlement of estates of deceased persons.

Section 3173, R. C. 1919, relating to county courts, provides:

“The proceedings of this court are construed in the same manner, and with like intendments, as the proceedings of courts of general jurisdiction, and to its records, orders, judgments and decrees there are accorded like force, effect and legal presumptions as to the records, orders, judgments and decrees of circuit courts.

The conclusion seems inescapable that under the Constitution of this state county courts, so far as concerns matters of probate, guardianship, and settlement of estates. are courts of general jurisdiction, and this court has always so held. Blackman v. Mulhall (1905) 104 N.W. 250; In re Estate of Stroup (1918) 1,66 NW 155.

In many states the purposes for which an executor, administrator, or guardian may sell or mortgage property of the estate are quite narrowly limited and specifically and exclusively defined by statute. Manifestly, in those states the court of probate lacks power and authority to authorize sale or mortgage when it clearly and affirmatively appears from the face of the record that the purpose for which leave to sell or mortgage is asked is outside of and foreign to the purposes stated and limited by the terms of the statute. In those states the jurisdiction of the court of probate with reference to selling and mortgaging is in a sense a special, as distinguished from a general, jurisdiction.

We have no statutes limiting in these particulars the general jurisdiction of the county court in probate or guardianship or specifying any purposes for which, and for which only, such courts may grant leave to sell or mortgage. Indeed our statutes affirm the broad and general powers of the county court in reference thereto. Section 3547, RC 1919, provides that a guardian may mortgage “by leave of the county court,” and section 3548 provides that the guardian shall file a petition setting forth the condition of the estate and the facts and circumstances by reason of which he desires to make the mortgage and that the court may make an order authorizing such mortgage to be given if the court shall find “that the interest of the ward and of the estate require the mortgage to be made.” By section 3534, RC 1919, selling of property by a guardian may be authorized when it appears to the satisfaction of the court that it is for the benefit of the ward. By section 3333, RC 1919, the county court may authorize a mortgage by an executor or...