Mortgage Trust Co. of Pennsylvania v. Redd

• Decision Date: 07 January 1907
• Citation: 38 Colo. 458,88 P. 473
• Parties: MORTGAGE TRUST CO. OF PENNSYLVANIA v. REDD.
• Court: Colorado Supreme Court

88 P. 473

38 Colo. 458

MORTGAGE TRUST CO. OF PENNSYLVANIA v. REDD.

Supreme Court of Colorado

January 7, 1907

Error to District Court, Arapahoe County; George W. Allen, Judge.

Action by the Mortgage Trust Company of Pennsylvania against Etta L Redd and others. From a judgment of nonsuit, in favor of Etta L. Redd, plaintiff brings error. Reversed.

R. H. Gilmore, for plaintiff in error.

Cass E Herrington, and Fred Herrington, for defendant in error.

GUNTER J.

This was an action to foreclose a trust deed. At the close of the evidence for plaintiff (plaintiff in error), upon motion of defendant Etta L. Redd, the court entered a judgment of nonsuit. It will be seen as our opinion proceeds that the vital question upon this review of that ruling is the validity of a judgment of the district court of said Arapahoe county rendered May 27, 1889, permitting a guardian to sell the real estate of his wards, which realty later and at the date of the institution of this action was covered by the above trust deed. The procedure in securing the last-mentioned judgment--that is, the order permitting the sale--was under section 2083, 1 Mills' Ann. St. reading so far as pertinent to this ruling, as follows: 'To obtain such order, the guardian shall present, to the district court * * * a petition, setting forth the condition of the estate, and the facts and circumstances on which the petition is founded. Notice of such intended application shall first be given by publication in some public news paper, published in the county where such proceeding is to be had, for three sucessive weeks, or, if no such news paper is published, then by posting written notices, in three of the most public places in said county, at least three weeks before the time of the hearing by the court.' The facts material to this review are: Etta L. and Lillie B. Redd, minors, owned certain real estate. Their guardian filed in the district court of said county his petition for leave to sell said realty, and on May 27, 1889, the court made an order of sale containing, inter alia, this recital: 'Now, on this day came the said petitioner, Alexander W. Redd, guardian of the persons and property of the above named Lillie B. Redd and Etta L. Redd, infant wards, and presented to the court here his verified petition as guardian aforesaid, praying leave and authority to sell at private sale and dispose of certain real estate of which said wards are jointly possessed in fee, * * * and it appearing to the court that said wards aforesaid had been duly and personally notified in the premises and that three weeks' publication of notice had been made and had according to law.' July 16, 1889, the guardian filed a second petition in the same case asking therein permission to incumber said property to secure funds for the use of said wards. Leave was granted to incumber until a sale at a reasonable price could be made and, acting thereunder, on July 16, 1889, the guardian as such borrowed of plaintiff $2,000, giving his promissory note as guardian therefor of date July 23, 1889, payable August 1, 1892, and to secure the same gave the trust deed involved. May, 1890, pursuant to the order of sale of May 27, 1889, the guardian for the consideration of $6,500 sold and conveyed the real estate to one Braun, subject to the trust deed. June 26, 1890, Braun sold and conveyed to defendant Kline said realty by warranty deed subject to said trust deed. October 17, 1891, Lillie B. Redd, then of full age, for a valuable consideration conveyed all of her interest in said property to Braun. August 1, 1892, the note for $2,000 secured by the trust deed fell due, and Kline, who claimed ownership of said real estate through the warranty deed from Braun, and through the operation of the above deed of 1891 of Lillie B. Redd, for the purpose of securing an extension of the note entered into a written agreement with plaintiff whereby he promised to pay the note at its maturity as fixed by the extension, and further agreed that, in case of default in payment of the note, said premises might be sold 'according to the provisions of said deed of trust.' September 15, 1892, the guardian's sale made to Braun was reported to, and approved by, the court. June 5, 1893, Kline conveyed the premises to one Findlay, who, July 21, 1894, reconveyed to Kline. Such is the history of the title to the date, April, 1896, of the institution of this suit to foreclose. The proceeding is against the land, there being no effort to hold Etta L. Redd personally. Alexander W. Redd, Lillie B. Redd, Etta L. Redd, Findlay, Kline, the heirs of Braun, and others unnecessary to mention, were made parties defendant. All of defendants defaulted except Etta L. Redd who appeared by answer and cross-complaint, and by counsel at the trial. At the close of the evidence for plaintiff, defendant Etta L. Redd moved a nonsuit, which, as stated, was granted. To review the judgment entered in pursuance of this motion, the case is here.

As Kline, by his above-mentioned agreement of August 1, 1892, in consideration of an extension in the time of payment, assumed the note and agreed that the trust deed should be a lien on the realty in question, he cannot question the validity of the note or trust deed, nor is he doing so. Further, if Kline is the owner of said realty, then Etta L. Redd has no interest in this proceeding to foreclose which is directed solely against the realty and no right to object to it. There is no question about Kline's ownership of the realty if the judgment permitting the sale by the guardian of May 27, 1889, is valid. In this proceeding to foreclose the trust deed, defendant Etta L. Redd by her answer assails the validity of that judgment on the ground of an alleged jurisdictional infirmity. Although this ground of assault--lack of jurisdiction--is urged in this proceeding to foreclose, which proceeding is collateral to that in which the judgment so assaulted was rendered, yet it is the right of the defendant to so attack the judgment, and, if jurisdictional infirmity be shown, it will be fatal here to that judgment. In Wilson v. Hawthorne 14 Colo. 530, 533, 24 P. 548, 549, 20 Am.St.Rep. 290, the court said: 'Though the authorities are somewhat conflicting upon questions of this kind, we think that the better doctrine is that a judgment rendered without obtaining jurisdiction of the person may be impeached and set aside by a proceeding in equity for that purpose; that in such proceeding the recitals of the record will not be taken to import absolute verity; and also that an action brought upon a judgment pronounced without obtaining jurisdiction of the person of the defendant may defeated by a proper answer, under a system of procedure allowing equitable defenses to be interposed in all civil actions. To warrant such relief, the contradiction of the record must be clearly established, but we need not discuss the kind or quantum of evidence required, since, in this case, no issue was taken on the cross-complaint. Civ. Code Colo. 1877, §§ 59, 60; Bliss, Code Pl. § 347; Freem. Judgm. § 495; Marr v. Wetzel, 3 Colo. 2; Great West Min. Co. v. Woodmas of Alston Min. Co., 12 Colo. 46, 20 P. 771, 13 Am.St.Rep. 204; Thompson v. Whitman, 18 Wall. (U. S.) 457, 21 L.Ed. 897; Ridgeway v. Bank, 11 Humph. (Tenn.) 523.' In Hallack v. Loft, 19 Colo. 83, 34 P. 571, it is said: 'The right to attack a judgment for jurisdictional infirmity, or for fraud, is not confined to the complaint; it extends as well to the answer and replication.' See, also, Smith v. Morrill, 12 Colo.App. 233, 55 P. 824; Symes v. People, 17 Colo.App. 466, 69 P. 312; Symes v. Charpiot, 17 Colo.App. 463, 69 P. 311; Tabor v. Bank of Leadville (Colo. Sup.) 84 P. 1060. While the right to attack a judgment in a collateral proceeding for a jurisdictional infirmity--that is, error in assuming jurisdiction--is well settled in this jurisdiction, on the other hand, it is equally well settled that a judgment cannot be questioned collaterally for an error committed in the exercise of jurisdiction. The opinion in Medina v. Medina, 22 Colo. 146, 43 P. 1001, supports the syllabus which reads thus: 'Decrees and orders of court entered in the exercise of jurisdiction, even though erroneous, are not open to collateral attack.' In Brown et al. v. Tucker, 7 Colo. 30, 34, 1 P. 221, 223, the court said: 'The decided weight of authority is to the effect that whether jurisdiction has been obtained by the service of process, actual or constructive, all subsequent proceedings are exercise of jurisdiction, and, however erroneous, they are not void, but voidable only, and not subject to collateral attack.' See, also, Powell v. National Bank of Commerce, 19 Colo.App. 57, 68, 74 P. 536.

The difficulty lies not in the existence or recognition of the general principle so announced, but in applying it to the facts here presented. Mills' Ann. St. § 2083, provides 'Notice of such intended application shall first be given by publication in some public news paper published in the county where such proceeding is to be had for three successive weeks.' The defendant says that the petition for leave to sell was filed and the judgment authorizing the guardian to sell was rendered without giving the notice so provided, that giving such notice is a jurisdictional requirement, and its omission fatal to the judgment authorizing the sale. If giving such notice was not essential to jurisdiction its omission, being simply an error in the exercise of jurisdiction, is immaterial in this collateral proceeding, and the proof of a failure to give the notice would not, in this proceeding, affect the validity of the judgment authorizing the sale. If the omission of the notice, in the procedure leading up to the order of sale, was...