Horn v. Cornwall, 7069
| Citation | 65 Idaho 115,139 P.2d 757 |
| Decision Date | 09 July 1943 |
| Docket Number | 7069 |
| Parties | HORN et al. v. CORNWALL et al |
| Court | Idaho Supreme Court |
Any error in decree approving administrator's final account and distributing the estate was subject to correction both by timely motion in probate court and by appeal. (I.C.A., secs 5-905, 11-401.)
The order of probate court settling final account of an executor, administrator or guardian is a "judgment in rem" and a "final judgment" conclusive against all the world after the time for appeal has expired.
Probate courts are "courts of record" and have original jurisdiction in all matters of probate, and judgments of such courts cannot be collaterally attacked. (I.C.A., sec. 15-1120.)
Where administrator's payments of interest on mortgage indebtedness were approved by probate court and administrator's account, including final account, acknowledged liability on note and mortgage, order settling final account and distributing realty involved subject to lien of such mortgage, which order was permitted to become final, was conclusive on validity of mortgage and could not be "collaterally attacked" on ground that note and mortgage were barred by statute of limitations. (I.C.A., secs. 5-203, 5-216, 5-217, 5-905, 11-401, 15-611, 15-1120.)
Appeal from District Court, Second Judicial District, Latah County; Miles S. Johnson, Presiding Judge. Action by Earl V. Cornwall against against L. Cornwin Cornwall and Enos Cornwall for partition of real estate, wherein Horace C. Horn and Roberta Riker, as owners and holders of mortgage on such real estate, were allowed to intervene and file a complaint for foreclosure of such mortgage. From a decree for intervenors, L Corwin Cornwall and Enos Cornwall appeal.
Decree affirmed.
Robert W. Peterson and Tom Felton, both of Moscow, for appellants.
Laurence E. Huff, of Moscow, for respondents.
On May 16, 1925, A. Mary Cornwall and Mason Cornwall, her son, made, executed and delivered for valuable consideration a promissory note for $ 1,200 bearing interest at six and one-half percent to Josie McCune. At the same time and as part of the same transaction the said A. Mary Cornwall, only, in order to secure payment of said promissory note made, executed and delivered to Josie McCune a mortgage on certain real estate. The mortgage was duly recorded and prior to this action the note and mortgage had been duly assigned to Horace C. Horn and Roberta Riker, who are now the lawful owners and holders thereof. A. Mary Cornwall paid the interest on the note annually to and including October 15, 1934. She died November 18, 1934, and her estate was probated in the probate court of Latah County. Mason, L Corwin, Earl V., and Enos Cornwall, John E., Edgar W., and Dorothy Gibb were the heirs of A. Mary Cornwall. On November 6, 1938, Mason Cornwall died and his estate was duly probated in Latah County, his heirs, except himself, being the same as those of A. Mary Cornwall.
The estates of A. Mary Cornwall and Mason Cornwall were duly closed and settled, appellants and Earl V. Cornwall deriving title to the above mentioned real estate by virtue of the decree of distribution in the estates of A. Mary Cornwall and Mason Cornwall, and by virtue of a deed properly executed and recorded prior to the date of this action from John E., Edgar W., and Dorothy Gibb, in all of which instruments title was burdened by the lien of the mortgage given by A. Mary Cornwall to Josie McCune. No claim was ever filed by the holders of the Josie McCune mortgage in the estate of either A. Mary Cornwall or Mason Cornwall on account of the principal and interest of the note and mortgage.
Mason and Earl V. Cornwall each filed a petition for letters of administration of the estate of A. Mary Cornwall, and the court ordered that they be appointed joint administrators, whereupon they and each of them qualified. On May 10, 1935, each resigned and they stipulated that Guy W. Wolfe be appointed administrator. On June 21, 1935, Guy W. Wolfe was appointed administrator, and duly qualified and acted as such during the remainder of the administration of the estate.
Administrator Wolfe made interest payments on said note, secured by said mortgage, from May 16, 1935, through and including May 16, 1939, filing accounts with the probate court on August 26, 1935, March 9, 1936, February 2, 1938, December 24, 1938, and his final account on February 16, 1940. His first account recited the Josie McCune note and mortgage and the interest due thereon and prayed the court for authority for the payment of said interest, which was duly ordered by the court. In all subsequent accounts, including his final account, Wolfe, administrator, recited as a valid obligation against the estate the McCune note and mortgage and payment of interest thereon, such payments being regularly approved by the court. Written acceptance of service of notice of settling of accounts was signed by L. Corwin, Mason and Earl V. Cornwall for the second and third accounts, and due notice as required by law was given to all heirs prior to the settlement of each and every account. The final decree of distribution recites inter alia: "* * * all of the heirs of the deceased residing in Idaho being present in Court and no objection in writing or otherwise being filed thereto, and it appearing that said account is correct it is ordered, adjudged, and decreed that said final accounting be, and the same is hereby allowed, approved and settled." In said decree the real property described in the mortgage to Josie McCune was distributed to the heirs "* * * subject to a mortgage of $ 1,200.00 in the favor of Josie McCune." (Italics ours.)
Earl V. Cornwall instituted an action against L. Corwin and Enos Cornwall for partition of the real estate described in the McCune mortgage, and as a part of his complaint alleged "* * * a copy of which mortgage, has been marked Exhibit 'A' as is hereto annexed and made a part of this Complaint as though fully set forth at this point." L Corwin and Enos Cornwall answered said complaint in partition and among other things affirmatively alleged: "That any pretended lien on the part of Josie McCune or her heirs or assigns is barred by Sections 5-203, 5-216, 5-217, I.C.A."
Horace C. Horn and Roberta Riker, the owners and holders of the McCune note and mortgage, upon petition, were allowed to file a complaint in intervention in the above action for partition for foreclosure of the Josie McCune mortgage, naming Earl V., L. Corwin, and Enos Cornwall as defendants in intervention. Interveners expressly waived personal judgment against said defendants, restricting recovery on the note and mortgage to the real estate described therein in accordance with section 15-611, I.C.A. Earl V. Cornwall defaulted. L. Corwin and Enos Cornwall answered the complaint in intervention, for themselves only, and alleged affirmatively that the note and mortgage of interveners were barred by sections 5-203, 5-216, and 5-217, I.C.A.
Briefly stated, this action is here upon the issues framed upon the complaint in intervention and the answer thereto. The cause was tried before the court without a jury, findings of fact, conclusions of law and a decree foreclosing the mortgage were duly made and entered. The default of Earl V. Cornwall was regularly entered and decree upon his default was taken in connection with the decree of foreclosure. From the decree, defendants in intervention, L. Corwin and Enos Cornwall, have appealed.
Bearing in mind that the estates of A. Mary Cornwall and Mason Cornwall were duly and regularly probated; that a final decree of distribution was duly made and the estates closed prior to the filing of the complaint in intervention and the answer thereto; that each and every of the administrator's accounts, including the final account, set out and acknowledged as a liability or claim the McCune note and mortgage and the payment of interest thereon by order and approval of the probate court; that the real estate covered by the McCune mortgage was distributed to the heirs subject to the lien of said mortgage; that no appeal was taken by appellants from the decree of-distribution and no objection made in the probate court to such decree, may appellants now attack the decree of the probate court on the ground that the note and mortgage were barred by the running of the Statute of limitations?
The payment of interest was regular and authorized. First, under provisions of section 15-624, I.C.A., providing: "If there be any debt of the decedent bearing interest, whether presented or not, the executor or administrator may, by order of the court, pay the amount then accumulated and unpaid, or any part thereof, at any time when there are sufficient funds properly...
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H. S. Cramer & Co. v. Washburn-Wilson Seed Co.
...questioning jurisdiction as to what was submitted. Short v. Thompson, 56 Idaho 361 at page 378, 55 P.2d 163; Horn v. Cornwall, 65 Idaho 115 at page 120, 139 P.2d 757. "The award of arbitrators, acting within the scope of their authority, determines the rights of the parties as effectually a......
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...In Re Lundy's Estate, 79 Idaho 185, 312 P.2d 1028 (1957); Woodland v. Spillman, 75 Idaho 286, 271 P.2d 819 (1954); Horn v. Cornwall, 65 Idaho 115, 139 P.2d 757 (1943); Moyes v. Moyes, 60 Idaho 601, 94 P.2d 782 (1939); Short v. Thompson, 56 Idaho 361, 55 P.2d 163 (1936). Appellant contends t......
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Pincock v. Pocatello Gold and Copper Min. Co., Inc., 12548
...to the Pincocks, and the time for appealing that distribution has since passed. The Pincocks conclude, relying on Horn v. Cornwall, 65 Idaho 115, 139 P.2d 757 (1943), that the judgment of the probate court operates as res judicata to bar relitigation of the facts surrounding the inclusion o......
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