Glover v. Brown

CourtUnited States State Supreme Court of Idaho
Citation32 Idaho 426,184 P. 649
PartiesGEORGE R. GLOVER, Respondent, v. FRANK L. BROWN and ELLA BROWN, His Wife, CHARLES KRUEMPELBECK, E. F. STEINMAN, ANNA R. HOSKOT, THE NAMPA REALTY TRUSTEE COMPANY OF IDAHO, a Corporation, FRANK L. BROWN, EMIL R. SCHMITZ, F. A. HAGELIN, C. E. LORE and BURTON B. TUTTLE, as Trustees of Said THE NAMPA REALTY TRUSTEE COMPANY OF IDAHO, E. W. SITZER and ALENA SITZER, His Wife, Appellants
Decision Date01 October 1919

HUSBAND AND WIFE-COMMUNITY PROPERTY-CONVEYANCE TO WIFE-VALIDITY OF - SEPARATE PROPERTY - PROBATE PROCEEDINGS-DESCENT AND DISTRIBUTION-DECREE OF DISTRIBUTION-VALIDITY OF-EFFECT ON TITLE-NATURAL GUARDIAN-DUTY TO PROTECT RIGHTS OF INFANT OFFSPRING-FRAUD-DIRECT ATTACK-EQUITY JURISDICTION-RELIEF-MISTAKE OF LAW-SUBROGATION-QUIETING TITLE.

1. The validity of a conveyance from husband to wife of the husband's interest in community property cannot be questioned by a third party, unless such party was a creditor of the husband before the conveyance was made or was a subsequent purchaser without notice.

2. Upon the death of respondent's mother, intestate, an undivided one-half interest in her separate property passed immediately to respondent under sec. 5702, Rev. Stats. of 1887, which was the succession law of this state at that time. The title to such interest vested in said heir at her death, subject only to proper administration.

3. The provision of sec. 5702, Rev. Stats. of 1887, that "it [the estate].... must be distributed.... in equal shares to the surviving husband or wife and child....," is mandatory and makes it the imperative duty of the probate court to distribute the property in the manner and to the heirs therein specified. Any other attempted distribution of the property in question is in excess of the probate court's jurisdiction and void.

4. The validity of probate proceedings may be attacked upon the ground that such proceedings have worked a fraud, and a court of equity has jurisdiction to compel the restoration of lands or proceeds fraudulently acquired by such proceedings.

5. One claiming title to lands is chargeable with notice of every matter affecting the estate which appears on the face of any recorded deed forming an essential link in his chain of title, and also with notice of such matters as he might have learned by inquiry which the recitals in such instruments made it his duty to pursue.

6. A guardian sale of real estate is a judicial sale and the rule of caveat emptor applies.

7. Held, that appellants cannot raise the question of bona fide purchase upon this appeal, first, because they have made no assignment of error raising that question in this court, and second, because the pleadings on their part do not properly raise the issue.

[As to community property acquired by gift, devise or descent, see note in 126 Am.St. 110]

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. R. N. Dunn, Presiding Judge.

Action to quiet title and for partition. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent.

F. A Hagelin and S. L. Tipton, for Appellants.

The probate courts have exclusive original jurisdiction in settlement of estates of deceased persons, and it is within the jurisdiction of those courts to determine who are the heirs of a deceased person and who is entitled to succeed to the estate and their respective shares and interest therein. The decrees of probate courts are conclusive in such matters. (Miller v. Mitcham, 21 Idaho 741, 123 P. 941; Connolly v. Probate Court, 25 Idaho 35, 45, 136 P 205.)

The probate court made its final decree decreeing the property in controversy to be community property and that George S. Glover was the only heir; this decree is final and conclusive and cannot be attacked in collateral proceeding, and can only be attacked in a direct proceeding by showing fraud or perjury in obtaining the decree. (Connolly v. Probate Court, supra; Miller v. Mitcham, supra; Clark v. Rossier, 10 Idaho 348, 3 Ann. Cas. 231, 78 P. 358; sec. 5627, Rev. Codes.)

Community property can be conveyed from husband to wife as a gift and the property conveyed can become the separate property of the wife, but this can only be done when there are no community debts or other debts of the husband. (Bank of Orofino v. Wellman, 26 Idaho 425, 143 P. 1169.)

George H. Rust, for Respondent.

"If through fraud or perjury an heir has been deprived of property without any laches or fault on his part, he has his remedy in a court of equity." (Connolly v. Probate Court, 25 Idaho 35, 136 P. 205; Rhino v. Emery, 72 F. 382, 18 C. C. A. 600; Johnson v. Waters, 111 U.S. 640, 4 S.Ct. 619, 28 L.Ed. 547; Griffith v. Godey, 113 U.S. 89, 5 S.Ct. 383, 28 L.Ed. 934, see, also, Rose's U. S. Notes; Sohler v. Sohler, 135 Cal. 323, 87 Am. St. 98, 67 P. 282.)

The defendants are bound by the fraud of their grantor, whether direct or remote. (15 Am. & Eng. Ency. of Law, 2d ed., 1200, and cases there cited.) Said probate decree was absolutely void. (Freeman on Judgments, secs. 116, 117.)

This is a direct attack on the probate decree, and not a collateral attack. (Campbell etc. v. Campbell, 152 Cal. 201, 92 P. 184.)

"In equity, gifts from husband to wife are recognized and protected, whether made with or without the intervention of a trustee, where they have been made in good faith and the rights of creditors are not infringed." (14 Am. & Eng. Ency. of Law, 2d ed., 1032, 1033, and cases n. 7; Jones v. Clifton, 101 U.S. 225, 25 L.Ed. 908, 910; Story's Eq. Jur., sec. 1380; Luhrs v. Hancock, 181 U.S. 567, 21 S.Ct. 726, 45 L.Ed. 1005; Moore v. Page, 111 U.S. 117, 4 S.Ct. 388, 28 L.Ed. 373, see, also, Rose's U. S. Notes.)

"No third party can question the validity of a conveyance from the husband to the wife, unless he was a creditor of the husband before the conveyance was made, or was a subsequent purchaser without notice." (De Garca v. Galvan, 55 Tex. 53; Lehmberg v. Biberstein, 51 Tex. 457.)

Upon the death of Marietta Glover on June 16, 1905, all her separate property descended to and vested at once in all her heirs, under the provisions of sec. 5702, Rev. Statutes of 1887. (Brenham v. Story, 39 Cal. 179, 188; Estate of Woodworth, 31 Cal. 595, 604; Gossage v. Crown Point Min. Co., 14 Nev. 153, 158; Smith v. Olmstead, 88 Cal. 582, 22 Am. St. 336, 26 P. 521, 12 L. R. A. 46, 48; Raulet v. Northwestern Nat. Ins. Co., 157 Cal. 213, 107 P. 292, 297; In re Campbell's Estate, 149 Cal. 712, 87 P. 573, 575; State v. Miller, 149 Cal. 208, 85 P. 609; In re Wickersham's Estate, 7 Cal. Unrep. 70, 70 P. 1079; Reed v. Stewart, 12 Idaho 699, 87 P. 1002, 1152; Wren v. Dixon, 40 Nev. 170, Ann. Cas. 1918D, 1064, 161 P. 722, 167 P. 324.)

The title to the land vested in the heirs at decedent's death, subject only to such powers of administration as were then possessed by the court. (In re Newlove's Estate, 142 Cal. 377, 75 P. 1083.)

A final decree of distribution of a probate court does not create title in the heirs, but simply releases the title from certain conditions imposed by the statutes. (Robinson v. Fair, 128 U.S. 53, 9 S.Ct. 30, 32 L.Ed. 415.) The heir takes subject to administration; with that limitation only, he holds precisely the title held by the ancestor. (McCaughey v. Lyall, 224 U.S. 558, 32 S.Ct. 602, 56 L.Ed. 883; see, also, Rose's U. S. Notes.)

The heir obtains title by descent, and not through the process of the probate court. (Lohmann v. Helmer, 104 F. 178; Binswanger v. Henninger, 1 Alaska, 509.)

If the land was in fact community property, the probate court had no jurisdiction over it and all probate proceedings were void so far as they purported to affect this land. (In re Klumpke's Estate, 167 Cal. 415, 139 P. 1062; Finnerty v. Pennie, 100 Cal. 404, 34 P. 869; In re Burdick's Estate, 5 Cal. Unrep. 6, 40 P. 35; In re Brady's Estate, 171 Cal. 1, 151 P. 275.)

The probate court does not have power to distribute property not belonging to the estate of the decedent. (Douglas v. Douglas, 22 Idaho 336, 337, 125 P. 796; Miller v. Mitcham, 21 Idaho 741, 123 P. 941.)

The third parties took their title with record notice that the land was separate property of the decedent, and of the fraud practiced by George S. Glover in procuring the decree. The present holders are in no sense innocent or bona fide purchasers without notice. (Johnson v. Waters, 111 U.S. 640, 4 S.Ct. 619, 28 L.Ed. 547; Arrowsmith v. Gleason, 129 U.S. 86, 9 S.Ct. 237, 32 L.Ed. 630; McDaniel v. Traylor, 196 U.S. 415, 25 S.Ct. 369, 49 L.Ed. 533, see, also, Rose's U. S. Notes; Campbell etc. v. Campbell, 152 Cal. 201, 92 P. 184.)

"A purchaser with notice occupies no higher position than his vendor and takes the property subject to all outstanding rights or equities with notice of which he is chargeable." (23 Am. & Eng. Ency. of Law, 2d ed. 517, n. 11.)

Defendants bought the land and paid the purchase money under the belief that George S. Glover had the entire title to the land. This was a mistake of law, and defendants are therefore not entitled to equitable relief of any kind, and are not entitled to subrogation. (Kleimann v. Geiselmann, 114 Mo. 437, 35 Am. St. 761, 21 S.W. 796; Deavitt v. Ring, 76 Vt. 216, 56 A. 978; Brown v. Rouse, 125 Cal. 645, 58 P. 267; Guy v. Du Uprey, 16 Cal. 195, 196, 76 Am. Dec. 518; Campbell v. Foster Home Assn., 163 Pa. 609, 43 Am. St. 818, 30 A. 222, 26 L. R. A. 117; German Savings & Loan Soc. v. Tull, 136 F. 1, 69 C. C. A. 1.)

BUDGE, J. MORGAN, C. J., Concurring. RICE, J., Dissenting.

OPINION

BUDGE, J.

This action was brought by respondent to quiet title to an undivided one-half interest in certain property in Canyon county, for partition thereof, and to have a decree of distribution made and entered in...

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    ...of the separate property of Rosanna Johnson became vested in respondent at the death of Rosanna Johnson, intestate. (Glover v. Brown, 32 Idaho 426, 184 P. 649.) believe it unnecessary to determine whether the probate proceedings before mentioned are void or whether respondent is barred by h......
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