McCarthy v. Van Der Mey

• Decision Date: 20 December 1889
• Parties: MCCARTHY ET AL. v VAN DER MEY ET AL.
• Court: Minnesota Supreme Court

42 Minn. 189

44 N.W. 53

MCCARTHY ET AL.vVAN DER MEY ET AL.

Supreme Court of Minnesota.

Dec. 20, 1889.

(Syllabus by the Court.)

1. Under Laws 1876, c. 37, a surviving husband or wife was entitled to an unconditional life-estate in the homestead premises. It was not qualified by, or subject to, a distinct or independent right of occupancy by the minor children.

2. A valid conveyance of such life-estate divests the homestead right; and the grantor cannot afterwards contest the validity of a sale of the premises to pay debts, under a license of the probate court.

3. The fee of the homestead of a deceased person is part of the assets of his estate for the payment of debts; and the time when it should be ordered to be sold by the probate court, upon due proceedings had is not a jurisdictional question.

4. A sale of the reversion for such purpose pursuant to the license of a probate court is not void, and the sale cannot be attacked, in a collateral proceeding or an independent action, on the ground that the homestead right had not terminated when the license was procured or sale made.

Appeal from district court, Ramsey county; BRILL, Judge.

Action by Charles J. McCarthy and others against Catharine Van Der Mey and others to quiet title to land. From a judgment for plaintiffs granting the relief, defendants appeal.

Otto K. Sauer and Chapin & Sayer, for appellants.

John D. O'Brien and Homer C. Eller, for respondents.

VANDERBURGH, J.

The findings of the trial court in this case establish the following facts: Henry H. Timme died January 31,1885, intestate. He was then the owner of lots 1 and 2, in block 4, Bazille & Guerin's addition to St. Paul, and left him surviving his widow, the defendant Catharine, since married to the defendant John Van Der Mey, and the other defendants, his children, some of whom were minors. At and prior to his death the intestate occupied, with his family, a building standing on the north 50 feet of lot 1 and a part of lot 2, and used in connection therewith the north 25 feet of the south 75 feet of lot 1 and a part of lot 2. The defendant Catharine, with her children, continued to occupy the same premises until October 9, 1885, when they removed therefrom, and have not since occupied the same. One Frank Schlick was by the probate court of Ramsey county duly appointed administrator of the estate of the deceased on March 17, 1885; the latter being at the time of his death indebted to divers persons in a considerable sum. The administrator was thereafter duly licensed to sell the real estate, including the two lots above described, after due notice to all persons interested. The administrator thereafter duly qualified and gave bonds as directed by the license, and in pursuance thereof, and thereafter, upon due notice, on the 5th day of December, 1885, proceeded to sell the advertised premises at public vendue, to the highest bidder, and then and there struck off and sold to the plaintiffs the real estate described in the complaint and in controversy here, being the south half of lots 1 and 2, above described, for the sum of $6,600. Such sale was duly confirmed by the probate court on the 30th day of December, 1885, and on the same day the administrator executed, in due form, to the purchasers his deed of conveyance of the premises so sold, in pursuance of the sale, and received the purchase money therefor. The court also finds that the plaintiffs, purchased the land in good faith, and without any notice that the same, or any part thereof, was exempt property, or was so claimed. The plaintiffs thereupon went into possession of the premises, and have ever since remained in the possession thereof. Other real estate of the intestate was sold at the same time, and a surplus distributed to the defendants, as the heirs of the deceased, in pursuance of the final decree of the probate court, on the 20th day of February, 1886. On December 30, 1885, when the sale was confirmed, the defendant Catharine and her husband executed and delivered to the plaintiffs their deed of quitclaim, duly acknowledged and recorded, whereby they conveyed all their right, title, interest, claim, and demand in or to the real estate described in the complaint. Save as expressly passed upon by the court in its findings, the allegations in the pleadings are found not to have been established.

The...