Gjerstadengen v. G. W. Van Duzen & Co.
| Decision Date | 02 June 1898 |
| Docket Number | 6731 |
| Citation | 76 N.W. 233,7 N.D. 612 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Ransom County; Lauder, J.
Action by Martin Peterson Gjerstadengen and another against G. W Van Duzen & Co. Plaintiffs had judgment, and defendants appeal.
Affirmed.
C. E Pierson, (Pierce & Austin, of counsel,) for appellants.
The judgment of the probate court is not open to collateral attack. Freeman on Void Jud. Sales, § 14; Wells on Jurisdiction, § 274; Griffith v. Bogart, 18 How. 164; Grignon v. Astor, 2 How. 340; McCarthy v. Van Der-Mey, 42 Minn. 192; Showers v Robinson, 43 Mich. 510; Bostwick v. Skinner, 80 Ill. 151; Woods v. Monroe, 17 Mich. 238; Griffin v. Johnson, 37 Mich. 92; Davis v. Hudson, 29 Minn. 34; Lovett v. Mathews, 24 Pa.St. 332; Grignon v. Astor, 2 How. 339; Mousseau's Will 30 Minn. 203; Van Fleet on Col. Attack, § 552; Roderigas v. East River, 63 N.Y. 460. The action of the court in granting an order of sale is an adjudication in favor of its own jurisdiction. Grignon v. Astor, 2 How. 339; Wyatt v. Steele, 26 Ala. 650; Peo. v. Gray, 72 Ill. 347; Curran v. Kuby, 37 Minn. 331. The fee of a homestead may be sold in probate proceedings, subject to the right of homestead occupancy. McGowan v. Baldwin, 46 Minn. 477; McCarthy v. Van Der-Mey, 42 Minn. 189; Drake v. Kinsell, 38 Mich. 232. The federal homestead law does not prevent or forbid the giving of a mortgage by the homesteader prior to receiving his patent. Lewis v. Wetherell, 36 Minn. 386; Lang v. Morey, 40 Minn. 396; Nycum v. McAllister, 33 Ia. 375. An agreement to make conveyance after patent issues is valid. Townsend v. Fenton, 30 Minn. 528. Section 2296, R. S. is interpreted so as to protect the homesteader. Lewis v. Wetherell, 36 Minn. 387. The protection of the statute fairly construed extends only during time of family occupancy. Plaintiffs action is barred by the statute. Section 5856, Comp. Laws; Streeter v. Wilkinson, 24 Minn. 288.
T. A. Curtis, (Morrill & Engerud, of counsel.)
The administrator's deed under which appellants claim title is void. The probate court had no jurisdiction to authorize its issuance. Olia Mikkelson had only a right to possess the land, an incohate right which upon performance of the conditions imposed by federal law would ripen into title. Section 2289, Rev. St. U. S.; Waples on Hd. Ch. 30. In case the entryman dies, his heirs do not take the land by inheritance but upon proof that they have complied with the homestead law. Michaelis v. Michaelis, 44 N.W. 1149; Chapman v. Price, 4 P. 807; In re Kavanaugh, 9 L. D. 268; A federal homestead is not liable to sale for debts contracted before patent. Section 2296, R. S. The probate proceedings are therefore void on their face. Dawson v. Mayall, 48 N.W. 12; Howe v. McGivern, 25 Wis. 525. This exemption of the land from sale incurred before patent does not depend upon the occupancy. Jau. v. Dee, 32 P. 460; Miller v. Little, 47 Cal. 348; Sovills v. Seef, 43 Ark. 451; Russell v. Lowth, 21 Minn. 107; Coleman v. McCormick, 33 N.W. 556. No lapse of time short of that required to acquire title by prescription will cure want of jurisdiction. Hegar v. DeGroat, 3 N.D. 354; Pursley v. Hayes, 22 Ia. II; Good v. Carmichael, 32 Ia. 475; Miller v. Babcock, 29 Mich. 526; Dawson v. Helms, 30 Minn. 107; Tray v. Roberts, 43 At. Rep. 68.
The object of this suit is to annul certain proceedings in the probate court in and for Ransom County, which were instituted for the purpose of selling certain land, as the property of Olia Mikkleson, deceased, for the payment of her debts, and also to set aside the administrator's deed executed and delivered under the order of the court in such proceedings. The plaintiffs secured a favorable decision below. That decision meets our full approval. The proceedings were absolutely void, for want of jurisdiction. The land sold did not belong to the estate of Olia Mikkleson, deceased. She filed upon it as a homestead in her lifetime, but she died before the patent was issued, and even before her right to demand a patent had accrued. The law gave her no such interest in the land as could be transmitted by her to her heirs. Upon her death all her rights in the land under her homestead entry ceased, and her heirs became entitled, under the statute, to a patent, not because they had succeeded to her equitable interest, but because the law gave them preference as new homesteaders, allowing to them the benefit of the residence of their ancestor upon the land. It is apparent from the statute (section 2291, Rev. St. U. S.) that congress did not intend to vest in the homesteader an interest which could be inherited under the laws of the state where the real estate might be situated, the same as other real estate, but to withhold from him such interest, and specifically designate the persons who, on his death, should be entitled to secure the right which the original entryman would have obtained, had he survived. What authority there is on the point supports our view. See Bernier v. Bernier, 147 U.S. 242, 13 S.Ct. 244, 37 L.Ed. 152; Chapman v. Price, (Kan. Sup.) 32 Kan. 446, 4 P. 807; Bernier v. Bernier, 72 Mich. 43, 47; 40 N.W. 50. In Bernier v. Bernier, 147 U.S. 242, 13 S.Ct. 244, 37 L.Ed. 152, the court say: As the land did not belong to the estate of the deceased, it is obvious that the court was without jurisdiction to order the sale thereof. When the land directed to be sold is the property of a stranger, the probate court possesses no jurisdiction over such property; nor has it any power to try the question of title in such a proceeding, or at all. Should the owner of the land appear in the proceeding, and set up his title, and be defeated, it would nevertheless be true that the court would be without jurisdiction. For the statutes do not contemplate that a probate court shall hear and determine questions relating to the title to land. It has power to act only when the real estate is in fact the property of the decedent. All that it ever pretends to do in a proceeding of the character of that which is here assailed is to order the sale of whatever interest the decedent may have had in the land at the time of his death. It never assumes to decide whether he was in fact the owner thereof. Nor can it decide such question, even when voluntarily litigated before it. Such a matter is as much beyond the jurisdiction as a suit in equity is beyond the jurisdiction of a justice of the peace; and it is familiar law that consent will not vest in any tribunal power which has been withheld from it. These principles are elementary, and we have recently had occasion to discuss them in a somewhat similar case. See Arnegaard v. Arnegaard, 7 N.D. 475, 75 N.W. 797. We fully agree with counsel for defendants that the federal statute exempting federal homesteads from liability for debts contracted before the issue of patent (section 2296, Rev. St. U. S.) does not take such homestead, after it has once become the property of the homesteader, out of the jurisdiction of the probate court, in proceedings to obtain a sale of a decedent's real estate to pay his debts. When it is established that the land did in fact belong to the decedent, then it is immaterial that it was exempt from sale for the debts for which it was ordered to be sold. The probate court in the supposed case has full jurisdiction over the property, because it forms part of the decedent's estate. Whether it shall be sold for certain debts is a judicial question, to be decided by the court, the same as any other question that arises in the course of the proceedings over which it clearly has jurisdiction. All persons who claim under the decedent, whether as heirs or as devisees, are parties to the proceedings; and they must therein assert the exemption of the land from liability to sale, if they intend to invoke the protection of the law at all. The question before the court is whether that particular land of the decedent shall be sold for debts, and all parties interested must then and there interpose any defense to a sale thereof which they may have, whether it relate to the existence of the alleged debts at all, or, conceding the claims to be valid, asserts that for such debts the land cannot be sold, because of the exemption thereof under the federal statute. It is now too late for the parties, so far as they claim the land as heirs, to insist that the property ought not to have been sold. But inasmuch as they do not in fact claim as heirs, but as independent owners, they may...
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