Harkness v. Village of McCammon, 5663

• Decision Date: 21 April 1931
• Docket Number: 5663
• Citation: 298 P. 676,50 Idaho 569
• Parties: HENRY O. HARKNESS, JOHN ABNER HARKNESS, and THEODORE R. HARKNESS, Appellants, v. VILLAGE OF MCCAMMON, BANNOCK COUNTY, STATE OF IDAHO, a Municipal Corporation, Respondent
• Court: Idaho Supreme Court

298 P. 676

50 Idaho 569

HENRY O. HARKNESS, JOHN ABNER HARKNESS, and THEODORE R. HARKNESS, Appellants, v. VILLAGE OF MCCAMMON, BANNOCK COUNTY, STATE OF IDAHO, a Municipal Corporation, Respondent

No. 5663

Supreme Court of Idaho

April 21, 1931

EXECUTORS AND ADMINISTRATORS-SALE, ACTION TO SET ASIDE-FRAUD.

1. Petition by heirs to set aside sale by administrator sufficiently alleged fraud by administrator and attorney in making sale.

2. Collusion and conspiracy are considered as "extrinsic fraud" available to heirs seeking to set aside sale by administrator for fraud.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Jay L. Downing, Judge.

Action to set aside sale. Judgment for defendant. Reversed and remanded.

Reversed and remanded, with instructions. Costs to appellants.

F. E Tydeman, for Appellants.

The jurisdiction of the probate court to sell property of an estate depends upon the following jurisdictional steps: a sufficient petition for sale, a sufficient order to show cause and due publication thereof, notice of sale in a manner provided by law, and lawful notice of the hearing on the return of sale. In addition to the above the sale must be free from any wilful fraud or acts on the part of the administrator or anyone connected with the sale which amount to fraud. (Kline v. Shoup, 35 Idaho 527, 207 P. 584; 11 R. C. L. 322, sec. 375; Bancroft's Probate Practice p. 602; Dugan v. Superior Court, 149 Cal. 98, 117 Am. St. 119, 84 P. 767; In re Griffith Estate, 84 Cal. 107, 24 P. 381; Adams v. Bradley, 99 Cal. 216, 33 P 841.)

Merrill & Merrill, for Respondent.

An order to show cause why real estate should not be sold by an administrator which does not specifically describe the property but states that the property is described in the petition for sale on file in the probate court's office, is not invalid as the statute does not require the description to be set out in said order. (Harkness v. Utah Power & Light Co., 49 Idaho 750, 291 P. 1049, 1051; C. S., secs. 7618, 7763; Roach's Estate, 139 Cal. 17, 72 P. 393.)

GIVENS, J. Lee, C. J., and Varian and McNaughton, JJ., concur. Budge, J., dissents.

OPINION

GIVENS, J.

H. O. Harkness died April 5, 1911, seised of certain real property, 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 the exception of one who appears by guardian, brought this action in time, under the authority of C. S., secs. 7652 and 7653, to set aside said sale. A general demurrer to the amended complaint was sustained.

Various grounds of attack upon the proceedings leading up to the sale, other than fraud, urged herein, are sufficiently similar to those considered in the two cases mentioned above, to be controlled by the rulings therein, and are unavailing to appellant.

One of the previous decisions did not pass on the ground of fraud:

"No charge of fraud or inadequacy of price is alleged in the complaint; . . . ." (Harkness v. Utah Power & Light Co., supra.) The other held the complaint defective because it did not charge the purchaser with knowledge of, or participation in, the fraud, or that the heirs were damaged by the alleged fraudulent acts.

The complaint herein alleges as follows:

"That plaintiffs say they are informed and believe and upon that ground charge the facts to be, that the said J. Wylie Sessions, as administrator of the said estate, and the said J. C. Jensen, entered into a secret arrangement whereby the said Wylie Sessions did sell the entire property of the said estate for 90% of its appraised valuation, and that upon such sale being made the said Jensen did then transfer said property to various parties who had indicated to the said administrator their intention of buying certain portions of the same. That these plaintiffs are informed and believe and upon that ground charge the fact to be, that the said administrator, previous to the time that the sale of said property was made by him to the said Jensen, had received offers for said property in separate parcels from various parties which should have brought sums in excess of the amount actually received by and through the sale of the property in bulk to the said Jensen, and that notwithstanding said fact, the said administrator, in order that he and the said Jensen might profit by the sale of said property in bulk, conspired with each other to bring about the sale of the property in bulk. That the said administrator had, prior to the time that said sale was made to the said Jensen of the property of said Estate, received an offer from the Village of McCammon for the...