Knight v. Harrison

• Decision Date: 03 July 1919
• Citation: 174 N.W. 632,43 N.D. 76
• Parties: KNIGHT v. HARRISON et al.
• Court: North Dakota Supreme Court

43 N.D. 76

174 N.W. 632

KNIGHT

v.HARRISON et al.

Supreme Court of North Dakota.

June 30, 1919.

Dissenting Opinions, July 3, 1919.

Syllabus by the Court.

To set aside or vacate a final decree of distribution of a county court in this state upon equitable grounds of mistake, it is necessary to bring an action directly for that purpose.

In an action for statutory partition of the property of a deceased among the heirs entitled thereto, pursuant to a final decree of distribution of the county court of this state, wherein it is sought to set aside and vacate such final decree, in part, in such proceeding, it is held that this is a collateral attack upon such final decree.

In such action, final decree of distribution of a county court in this state is not subject to collateral attack upon the equitable grounds of mistake, where the jurisdiction of the county court and no fraud or collusion are shown.

In such action, where it appears that such action of partition was instituted by one of the heirs, a son of the deceased, to have allotted in severalty the estate of the deceased pursuant to the statute, among the persons entitled thereto, in accordance with the terms of the final decree of distribution theretofore rendered, and a supplemental complaint is therein filed, concurred in by the remaining children, the heirs of the deceased, which seeks to set aside such final decree so far as the same awards a one-third distributive share to the widow of the deceased upon the ground that such widow was never the wife of the deceased, by reason of the failure of a court in California to enter and file a final decree of divorce between such widow and her former husband, and where it appears that the parties in such proceeding were parties to the proceeding had in the county court, it is held that the final decree of distribution rendered is res judicata between the parties in this proceeding.

Additional Syllabus by Editorial Staff.

Prior to the entry of a final decree of distribution of the estate of a decedent, an action for partition cannot be maintained by the heirs.

A final decree of distribution of a decedent's estate is a valid final judgment, and cannot be made by any other than a county court, or in any other proceedings than those of administration, in view of Comp. Laws 1913, §§ 8531-8533, and stands in equal rank with any judgment entered in any court of the state.

The action of partition is in the nature of a chancery action, cognizable under equity powers.

Action of partition by Joseph E. Knight against Louise G. Knight and others, wherein it is sought to vacate and set aside, in part, a final decree of distribution. From a judgment rendered in favor of the children of the deceased, and from an order denying a new trial and leave to file an amended answer, Louise G. Knight, the widow of the deceased, one of the defendants, appeals. Reversed, and judgment ordered to be entered for partition in accordance with the final decree of distribution.

Christianson, C. J., and Birdzell, J., dissenting.

T. H. McEnroe, of Fargo, for appellant.

J. F. Callahan and S. B. Bartlett, both of Casselton, and Engerud, Divet, Holt & Frame, of Fargo, for respondents.

BRONSON, J.

This is an action for partition, wherein it is sought to vacate, in part, a final decree of distribution entered in the county court of Cass county. The defendant Louise G. Knight has appealed from a judgment rendered in favor of the plaintiff and the remaining defendants, awarding partition and setting aside, in part, such final decree, and from the order of the trial court denying a new trial, with leave to file an amended answer.

There is little dispute upon the facts. This appeal involves, practically, questions of law alone. In substance, the facts are as follows:

The appellant was married to one Bonfoey in Michigan in 1883. In August, 1903, the husband, Bonfoey, instituted an action for divorce upon the ground of desertion in the superior court of Los Angeles county, Cal. The appellant admitted service and made no answer or appearance in such action. On September 25, 1903, the divorce action came up before, and was submitted for decision to, the court in California. On September 30, 1904, the judge of the California court made and signed an interlocutory decree, which provided that, upon the expiration of one year from and after the entry of such interlocutory decree, a final decree should be made dissolving the bonds of matrimony. On October 9, 1905, the appellant, age stated as 39 years, was married to one Elmer Gordon, age stated as 44 years, by the judge of the superior court of San Diego county, in the city of San Diego, who certified that he believed the facts stated in the marriage license to be true and that there appeared no legal impediment to the marriage. On November 30, 1909, said Elmer Gordon died in San Bernardino county, Cal., from accidental causes. On January 19, 1910, the appellant, pursuant to a marriage license issued in Orange county, Cal., was married to the deceased, Suel H. Knight, age stated as 75 years, residence, Cass county, N. D., by a justice of the peace of such county, at Santa Ana, who certified that he believed the facts stated in the license to be true, and upon inquiry that there appeared to be no legal impediment to the marriage.

On January 26, 1914, said Knight died intestate in Los Angeles county, Cal., and at the time was living there with the appellant. He left surviving him seven children, all of age excepting one girl, who appears in this action by her guardian. Such children are his only heirs at law, if the appellant is not entitled to her statutory share in his estate. Thereafter proceedings for the administration of the estate of the deceased were instituted in the court of Cass county, this state, and pursuant to proceedings had in such county court a final decree of distribution was rendered and entered by the court on December 30, 1915. Such decree of distribution awarded one-third of the real and personal property to the appellant, and the remaining two-thirds to the respondents. The estate consists of farm lands, city buildings and lots, and personal property, aggregating an appraised valuation of over $150,000. An agreement in writing was made between the appellant and the respondents that, after the date of the decree of distribution, and up to and including December 31, 1916, one Washburn, who was the administrator, should rent, manage, and control the property of the estate and attempt to dispose of the same for a fee of 5 per cent. and a commission of 5 per cent., in case of an agreed sale of any of such property. On March 27, 1917, a complaint was filed by the plaintiff herein in the district court of Cass county, alleging ownership of the parties herein in the property of the deceased, pursuant to the final decree rendered, including the one-third interest of the appellant therein, and praying for a statutory partition of the real property in severalty. In October, 1917, the appellant herein requested leave of the court to file her answer, and, upon leave being granted, her answer was filed, praying for a partition in accordance with the demand of the plaintiff's complaint. In August, 1917, a written contract was made between the parties hereto, wherein the plaintiff agreed to sell to the appellant and to the remaining children all of his right and interest in the real and personal property of the estate for the sum of $33,000; $10,000 to be paid on September 1, 1917, and the balance on or before 10 years thereafter. Upon this agreement the plaintiff brought an action for specific performance and filed a lis pendens, but, after the commencement of this action of partition, the same was abandoned and dismissed.

On April 18, 1918, pursuant to an application made, the trial court permitted the plaintiff to file an amended and supplemental complaint. In this supplemental complaint many of the facts hereinbefore stated are alleged, and it is further alleged that the appellant was never the wife of said deceased, but that she was and for many years had been the lawful wife of said Bonfoey; that the plaintiff and the other children of the said deceased did not ascertain such fact until within six weeks prior to the filing of such supplemental complaint; that the proceedings had in the county court and with relation to such estate were so had upon the belief of the parties interested that said appellant was in fact the wife of said deceased. Such complaint therefore prayed that the final decree of the county court be set aside to the extent that it awarded to said appellant such interest as the widow of the deceased, and that it be decreed that the children of said deceased be the only heirs and the ones entitled to the entire estate; that, further, such children be determined to be the owners in fee as cotenants of the real and personal property of the estate; that, furthermore, such children recover judgment against the appellant for the moneys paid to her, some $9,902, out of such estate; and that partition of the real and personal property be had as provided by law. To this supplemental complaint the defendants, other than the appellant, interposed an answer, admitting all the allegations thereof and asking for judgment as demanded therein. To such supplemental complaint the appellant interposed a second separate answer, denying specifically the allegations therein contained concerning her status as the widow of the deceased. In such answer the appellant specifically alleges that she procured an absolute divorce from said Bonfoey, in the superior court of Los Angeles county, Cal., which ripened into a final decree and judgment of divorce, and that such judgment is now in full force and effect; that, furthermore, the county court of Cass county had full jurisdiction and entered a final decree of distribution in the estate of the deceased, pursuant to which the appellant became...