Harkness v. Hartwick
| Decision Date | 11 October 1930 |
| Docket Number | 5596 |
| Citation | 49 Idaho 794,292 P. 592 |
| Parties | HENRY O. HARKNESS, JOHN ABNER HARKNESS and THEODORE R. HARKNESS, Appellants, v. W. F. HARTWICK, Respondent |
| Court | Idaho Supreme Court |
EXECUTORS AND ADMINISTRATORS-SALE ESTATE ASSETS.
1. Administrator's sale of realty will not be set aside to purchaser's prejudice, without allegation and proof that purchaser was party to fraud at sale.
2. In action to vacate administratrix's sale partly because of allegedly fraudulent re-appraisal, allegation that property did not decrease in value in sum shown by appraisal held insufficient allegation of damage.
3. Re-appraisal of property ordered sold by administratrix held properly ordered, it appearing that original appraisal was too high (C. S., sec. 7630).
4. That re-appraisal was had on day of confirmation of administratrix's sale of realty held not improper (C. S sec. 7630).
5. Whether sale of realty by administratrix should be ordered held wholly within court's discretion (C. S., secs. 7616 7622).
6. Record held not to show that order authorizing administratrix to sell realty was abuse of discretion (C. S., secs. 7616 7622).
7. That some realty sold was in Oneida county, while all sale notices were posted in Bannock county, could not affect administratrix's sale of Bannock county property.
APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Jay L. Downing, Judge.
Action to set aside sale. From a judgment of dismissal, plaintiffs appeal. Affirmed.
Judgment affirmed; costs to respondent.
F. E. Tydeman, for Appellants, cites no authorities on points decided.
Merrill & Merrill, for Respondent.
There are no sufficient allegations of active fraud alleged in this case and lack of jurisdiction does not appear upon the face of the record. Hence, orders and decrees of the probate court cannot be attacked collaterally. (Clark v. Rossier, 10 Idaho 348, 3 Ann. Cas. 231, 78 P. 358; Shane v. Peoples, 25 N.D. 188, 141 N.W. 737; Blickensderfer v. Hanna, 231 Mo. 93, 132 S.W. 678.)
Mere irregularities are insufficient upon which to attack the jurisdiction of the court. (Bancroft's Probate Practice, p. 1168; Lake v. Hathaway, 75 Kan. 391, 89 P. 666; Swinehart v. Turner, 44 Idaho 461, 259 P. 3; Blackman v. Mulhall, 19 S.D. 534, 104 N.W. 250.)
Sarah Harkness, as administratrix of her deceased husband's estate, secured an order of the probate court of Bannock county directing the sale of certain lands belonging to the estate. The sale was made and confirmed, the administratrix issued her deed, and through subsequent mesne conveyances the defendant and respondent, W. F. Hartwick, came into possession of a portion of the lands, the same being situate in Bannock county.
Appellants, all of whom were minor devisees at the time of sale, brought an action, some fifteen years later, in the district court of Bannock county to vacate such sale, charging certain invalidities and irregularities occurring in the sale proceedings, which they allege rendered the sale void. In addition, they charge that some of the proceedings were fraudulent. A general demurrer to the complaint was sustained, similar fate befell an amended complaint, and, after sustaining a general demurrer to the second amended complaint, the court dismissed the action. From the judgment of dismissal this appeal is taken.
Many of the points raised are in their nature identical with those heretofore disposed of in the companion case, Harkness v. Utah Power & Light Co., ante, p. 756, 291 P. 1051, and it is necessary to discuss only the additional charges.
The most serious contention is that the property was re-appraised on March 3, 1913, the day the sale was confirmed, at a sum approximately $ 22,000 less than the sum at which it had been appraised during the year preceding. This, it is alleged, was done with the consent of the administratrix, her attorney and the appraisers for the purpose of making "it possible to sell the lands" and "defrauding the plaintiffs of their property." This is the only allegation of fraud in the complaint.
It will be noticed that there is an entire failure to charge respondent either with knowledge of or participation in the fraud alleged. He stands before the court as a bona fide purchaser, with conduct unassailed. It is fundamental that a sale will not be set aside for fraud, to the prejudice of the purchaser, without allegation...
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Gilder v. Warfield
... ... The ... order of confirmation would be subject to impeachment only in ... case respondents be found guilty of fraud. In Harkness v ... Hartwick, 49 Idaho 794, 796, 292 P. 592, it was held to ... be fundamental that a probate sale will not be set aside for ... fraud without ... ...
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Van Der Werf's Estate, In re, 48011
...purchaser in the fraud or at least that he had some notice thereof. 34 C.J.S., Executors and Administrators, § 622, c. Harkness v. Hartwick, 49 Idaho 794, 292 P. 592; Graham v. Floyd, 214 N.C. 77, 197 S.E. 873. In the Harkness case the opinion states [49 Idaho 794, 292 P. 'It will be notice......
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Harkness v. Village of McCammon, 5663
... ... and leaving a wife and five minor children. Mrs. Harkness, as ... administratrix of the estate, sold certain of said property, ... which sales were attacked in Harkness v. Utah Power & ... Light Co., 49 Idaho 756, 291 P. 1051, and Harkness ... v. Hartwick, 49 Idaho 794, 292 P. 592 ... Mr. J ... H. Wylie Sessions later succeeded Mrs. Harkness as ... administrator, and sold the McCammon waterworks in question ... herein to J. C. Jensen, who in turn sold them to respondent ... Appellants, ... the minor heirs, now of age, with ... ...