Lee v. Tonsor

• Decision Date: 05 December 1916
• Docket Number: 8194.
• Citation: 161 P. 804,62 Okla. 14,1916 OK 998
• Parties: LEE v. TONSOR ET AL.
• Court: Oklahoma Supreme Court

161 P. 804

62 Okla. 14, 1916 OK 998

LEE v. TONSOR ET AL.

No. 8194.

Supreme Court of Oklahoma

December 5, 1916

Syllabus by the Court.

In the absence of specific authorization of the county court so to do, the guardian of a minor has no power to bind the real estate of his ward, or to create a lien thereon, by contract for labor and material for improvements made upon such estate.

The right to a lien for labor and material going into improvements placed upon real estate is statutory, and is dependent upon a binding contract with the owner of the real estate, or with some one lawfully contracting with him, for such labor and material. Section 3862, Rev. Laws 1910.

Under section 6364, Rev. Laws 1910, the power of the county court to authorize a guardian to mortgage the lands of his wards is limited to debts "for which such estate or any part thereof is then legally liable to be ordered sold."

An order of the county court purporting to authorize a guardian to mortgage the lands of his ward to secure debts that are not a lien against the estate, or for the payment of which the estate is not bound, is in excess of the power of the court and void, and a mortgage executed in pursuance thereof is a nullity.

Where it appears affirmatively from the face of the record that the court is without power to make the order that was made, such order is void and subject to collateral attack.

Commissioners' Opinion, Division No. 2. Error from District Court, Tillman County; T. P. Clay, Judge.

Action by J. E. Lee against Glen Tonsor and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Wilson & Roe, of Frederick, for plaintiff in error.

Mounts & Davis, of Frederick, for defendants in error.

GALBRAITH C.

J. E Lee, as plaintiff, commenced this action in the trial court against the defendants, Glen Tonsor, Estella Tonsor, and Mrs Annie Tonsor, being the mother and two minor children, to recover judgment on a promissory note and to foreclose a real estate mortgage given to secure the same. There was no defense to the action by Mrs. Tonsor. The minors defended on the ground that the note and mortgage were void as to them because the execution thereof had not been legally authorized. It appears from the record that prior to the year 1906 the husband of Annie Tonsor, and the father of Glen and Estella Tonsor, died in Tillman county, Okl., and that at the time of his death he owned a quarter section of land located in that county, and that this land was inherited by the surviving widow and two minor children. A guardian was duly appointed for the minors, and some time during the year 1908 the mother and guardian contracted for and had a dwelling house and other improvements made upon this land, and failing to pay for the same, the materialmen furnishing the lumber for such improvements and certain of the laborers who constructed the improvements filed lien statements claiming a lien against the land and the improvements; that the guardian, after these lien statements were filed, presented a petition to the county court of Tillman county praying an order authorizing him to mortgage the land to take up the amount of the indebtedness so claimed. The petition was in the following form:

"In the Matter of the Guardianship of Glenn Tonsor and Estella Tonsor.

The petition of John W. Goodwine, the guardian of the estate of Glenn Tonsor and Estella Tonsor, minor heirs of Frank Tonsor, deceased, respectfully represents and shows to the court that the said Frank H. Tonsor died intestate on or about the 1st day of December, 1906, and left certain real estate in this county, as shown by the inventory filed herein, to wit: The southwest quarter of section 35, in township 2 south of range 17, west of I. M.; that the said Frank H. Tonsor left a surviving wife, namely, Annie Tonsor, also left two surviving children, to wit, Glenn Tonsor and Estella Tonsor, minors; that on or about January --, 1908, under contract with the guardian of said minor children and their mother, Anna Tonsor, certain improvements were made and material furnished for the improvements of said land, and work and labor performed and material furnished in the erection of a fence upon said land; that for said labor and material furnished as above specified the following mechanic liens were filed in the office of the clerk of the district court in and

for said county of Tillman, to wit: On March 30, 1908, H. M. Marsh, for work and labor performed, the sum of $35.40; on March 31, 1908, N.W. Willinford, for work and labor, in the sum of $41.90; on March 22, 1908, Dascomb-Daniels Lumber Company for material furnished, in the sum of $476.55; on May 28, 1908, C. F. Adair, for work and labor and material, $687.

Wherefore your petitioner prays the court to grant authority to John W. Goodwine, guardian, to mortgage said real estate in the sum of $1,100, for the purpose of satisfying said existing lien."

"Dated this the 26th day of August, 1908.

John W. Goodwine."

After hearing on the petition the judge made an order authorizing the guardian to join the mother of the minors in executing a mortgage to take up this indebtedness. That order was as follows:

"John W. Goodwine, as the guardian of the estate of Glenn Tonsor and Estella Tonsor, minors, having on the 26th day of August, A. D. 1908, presented to this court and filed herein his verified petition in due form, praying for an order authorizing him to mortgage the southwest quarter of section thirty-five (35) in township two (2) south of range seventeen (17) west of I. M., and it appearing to the court upon satisfactory proof that a copy of the order of this court entered herein on the 26th day of August, 1908 appointing the time and place for hearing said petition, was published for two successive weeks in the Frederick Leader, a weekly newspaper published within said Tillman county, as provided in said order, now, on this 20th day of September, 1908, at the time appointed for the hearing of said petition, it being a day of the regular July term of said court, comes said John W. Goodwine, petitioner, and the matter of said petition coming on regularly to be heard, the court, upon due examination and consideration of said petition, and after a full hearing upon the same, and due examination and consideration of the proofs and allegations of the parties interested, find from the

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