Ethell v. Nichols

• Decision Date: 01 January 1879
• Parties: D. B. Ethell, Administrator, Respondent, v. B. J. Nichols, Appellant.
• Court: Idaho Supreme Court

1 Idaho 741

D. B. Ethell, Administrator, Respondent, v. B. J. Nichols, Appellant.

Supreme Court of Idaho

January 1, 1879

PROBATE COURTS-JURISDICTION.-Probate courts are courts of special and limited statutory jurisdiction.

PROBATE COURT-SALE OF REAL ESTATE BY.-An order for the sale of real estate, under the provisions of the probate act, is a judgment in a new, separate, and independent proceeding depending for its validity upon the sufficiency of the facts alleged in the petition for the order.

IDEM-JURISDICTION.-It is necessary to the jurisdiction of the probate court making the order of sale of real estate, that there should be a petition therefor, sufficient, in substance, to show legal grounds for the order; and it is necessary to prove that there was such a petition when the jurisdiction of the probate court to make the order of sale is controverted.

APPEAL from the Second Judicial District, Alturas County.

Brumback & Cahalan, for the Appellant. R. A. Sidebotham and Alanson Smith, for the Respondent.

PRICKETT J.,

delivered the opinion.

CLARK, J., concurred.

This action was brought under section 171 of the Probate Practice Act, to recover a deficiency between the price bid by the defendant Nichols at an administrator's sale of real estate, and the sum realized therefor at a resale, upon a refusal of the defendant to comply with the terms of the original sale.

The plaintiff alleges in his complaint, that on the twenty-first day of March, 1870, one E. P. Rice died intestate; that on the fifteenth day of May following, he was duly appointed administrator of the estate of said Rice, deceased, and that he thereupon qualified and entered upon the duties of that trust; that on or about the first day of March, 1871, by virtue of an order of sale, duly made by the probate court of Alturas county, as administrator, he sold to the defendant for the sum of five hundred dollars in gold coin, all the right, title, interest, and estate of said intestate, at the time of his death, in and to a certain toll wagon road described in the complaint; that on the sixth day of April 1871, such sale was duly confirmed; that on or about the twenty-fifth day of September, 1871, at the request of defendant, and upon the permission of the probate court, the return of sale was amended so as to include certain liens which the said estate held upon and against the property sold; and changing the kind of money to be paid by the purchaser Nichols from coin to currency; that plaintiff afterward offered and tendered to defendant a good and sufficient deed of the property, which he refused to accept, and that he also refused payment of the purchase price, or any part thereof; that after due and legal proceedings had, the same property was afterward resold for one dollar, and that such resale was duly confirmed. The prayer of the complaint is for the sum of four hundred and ninety-nine dollars deficiency, with interest and costs.

After demurrer to the complaint, overruled, the defendant answered, denying and putting in issue every material allegation of the complaint. A trial was had at the August term of the court, 1877, resulting in a verdict and judgment in favor

of the plaintiff for five hundred and seventy-six dollars and forty-five cents and costs; from which judgment the defendant appealed to this court.

The bill of exceptions shows that during the trial numerous exceptions were taken by the defendant, and the rulings, decisions, and instructions of the court below, so excepted to, are assigned as error. The first alleged error is the order of the court overruling the demurrer to the complaint. We are satisfied that this exception was not well taken, and that the demurrer was properly overruled. It is not necessary, however, to state at length the reasons for holding the complaint to be sufficient, as the next assignment of error is well taken, and is decisive of the case against the plaintiff.

On the trial the plaintiff offered in evidence an order of sale of the probate court of Alturas county, dated the twenty-third day of January, 1871, authorizing and directing the administrator to sell the real estate mentioned in the complaint. The attorney for the defendant objected to its introduction, on the ground that no petition for such order had been introduced or shown to exist. The court overruled the objection, holding that the order authorizing the sale and the order confirming the sale were sufficient evidence to conclude the defendant. The defendant excepted to that ruling of the court, and assigns the same as error here.

The complaint, as already stated, alleges that the sale to Nichols was made by virtue of an order of sale duly made by the probate court. This form of allegation, under section 59 of the...