People ex rel. Chemung Mining Co. v. Cunningham

• Decision Date: 13 May 1898
• Citation: 53 P. 451,6 Idaho 113
• Parties: STATE EX REL. CHEMUNG MINING COMPANY v. CUNNINGHAM, ADMINISTRATOR
• Court: Idaho Supreme Court

53 P. 451

6 Idaho 113

STATE EX REL. CHEMUNG MINING COMPANY v. CUNNINGHAM, ADMINISTRATOR

Supreme Court of Idaho

May 13, 1898

SALE OF REAL ESTATE BY ADMINISTRATOR.-Under the provisions of section 5491 of the Revised Statutes, all sales made by an administrator of the estate of a deceased person must be reported under oath to, and confirmed by, the probate court before the title of the property sold passes.

SAME-RETURN OF SALE-CONFIRMATION BY THE COURT.-No title passes until return of sale is made under oath and confirmed by the court nor can the administrator legally convey the title until such report and confirmation are made.

ADMINISTRATOR MUST EXECUTE CONVEYANCE-MANDAMUS WILL LIE TO COMPEL.-It is the official duty of an administrator, enjoined by statute to execute a conveyance of real estate after return of sale has been made, as required by law, and confirmed by the court, and to execute a conveyance therefor as directed by the order of confirmation. In cases of refusal, mandamus will issue to compel him to act.

(Syllabus by the court.)

APPEAL from District Court, Shoshone County.

Affirmed, and costs of this appeal awarded to the respondent.

John R McBride, for Appellant.

The writ of mandamus does not lie in any case where a doubt arises as to the duty of the person sought to be made to perform. It lies in a case free of doubt and when there is no other remedy. (Harpending v. Haight, 39 Cal. 189, 2 Am. Rep. 432; Fulton v. Hanna, 40 Cal. 278; People v. Supervisors, 28 Cal. 429; Williams v. Smith, 6 Cal. 91; Goodwin v. Glazer, 10 Cal. 33; Fogarty v. Sparks, 22 Cal. 143; People v. Olds, 3 Cal. 167, 58 Am. Dec. 398; Middleton v. Low, 30 Cal. 596; Hewill v. Lane, 53 Cal. 213.) The court will refuse the writ, if, upon granting it the object could not be accomplished. (People v. Tremain, 17 How. Pr. 142; People v. Supervisors, 21 How. Pr. 335; affirmed in 22 How. Pr. 276.) The petitioner had a complete remedy by an appeal from the decree of the probate court, entered July 26, 1897, affirming the sale to Hanly. (Idaho Rev. Stats., sec. 4831.) In Grignon v. Astor, 2 How. (U.S.) 319, it was held that if the court--the probate court--had jurisdiction over the subject, errors and irregularities in the procedure were the subject of correction by appeal only. (Comstock v. Crawford, 3 Wall. 402.)

A. G. Kerns, for Respondent.

An objection to the sufficiency or form of the petition and affidavit should have been taken by motion or demurrer, where the defect, if any, might have been remedied by amendment. Objections to the form of action brought cannot be taken for the first time on appeal; unless taken on the trial they are considered waived. (People v. McLean, 80 N.Y. 254.) Or that the suit should have been brought in equity instead of at law. (8 Ency. of Pl. & Pr. 177.) The act of the probate judge, assuming to act as the probate court, in deliberately changing the name of the purchaser in whom the sale was orally announced by the court to have been confirmed, was an excess of jurisdiction and void. (2. Lawson's Rights, Remedies and Practice, sec. 953, and cases cited.) A defense in mandamus proceeding must exist in favor of the defendant. He cannot set up pretended rights existing in strangers based upon his own illegal and void actions, by way of defense. (Merrill on Mandamus, secs. 53, 54, 55 et seq., p. 59; Williams v. Clayton, 6 Utah 86, 21 P. 398; People v. Mayor of New York, 10 Wend. 393-397; People v. Fleming, 4 Denio, 137, 2 N.Y. 484.) An action for damages for failure to perform a ministerial duty is not an adequate remedy in law. (High on Extraordinary Legal Remedies, 35; Merrill on Mandamus, sec. 53; Fremont v. Crippen, 10 Cal. 212, 70 Am. Dec. 711; Adriance v. Supervisors of New York, 12 How. Pr. 224; Buck v. City of Lockport, 6 Lans. 251, 43 How. Pr. 361; Merrill on Mandamus, secs. 85, 86; High on Extraordinary Legal Remedies, sec. 96; State v. Le Fevre, 25 Neb. 223, 41 N.W. 184; Moore v. Muse, 47 Tex. 214.) A want of jurisdiction in a court rendering a judgment may be shown collaterally whenever any benefit or protection is sought under the judgment. (1 Black on Judgments, secs. 170, 218, 250, 275, 633; Putnam v. Man, 3 Wend. 202, 20 Am. Dec. 686; Fitzhugh v. Custer, 4 Tex. 391, 51 Am. Dec. 728; Thoureine v. Rodrigues, 24 Tex. 468; Hill v. City Cab Co., 79 Cal. 188, 21 P. 728; Tyson v. Belcher, 102 N.C. 112, 9 S.E. 634.)

SULLIVAN C. J., HUSTON, J. Huston, Quarles, JJ., and Sullivan, C. J., concurring.

OPINION

SULLIVAN, C. J.

This is a proceeding brought in the district court for a writ of mandate to compel the defendant, Cunningham, as administrator, to execute a conveyance of an undivided one-third interest in a certain mining claim situated in Shoshone county. The facts are as follows: Clarence Cunningham, as administrator of the estate of David McKelvey, deceased, made application to the probate court of Shoshone county for an order to sell an undivided one-third interest of the Skookum lode mining claim. On said application an order of sale was granted, and the administrator caused notice to be posted and published for bids for the sale of said property, as required by the order of sale, and received but one bid thereunder for said property. Said bid or offer was made by the Chemung Mining Company, and the price offered was $ 700, that being the only bid received under said notice. The said administrator made his return of sale to the said probate court, wherein he reports, inter alia, as follows: "I did on said day sell said real estate to the Chemung Mining Company, the purchaser thereof, and request that said sale be confirmed." Said return is dated June 15, 1897. Said sale was confirmed by said court on the thirteenth day of August, 1897. It appears from the transcript that an order confirming a sale of said real estate was made on the twenty-sixth day of July, 1897. Said order recites the facts of said return having been made, and of the sale of said real estate to Kennedy J. Hanly for the sum of $ 700, instead of to the Chemung Mining Company, as actually shown by said return. There is sufficient in the record to show why that change was made. The return of the administrator showed that the only offer or bid received at said sale was one from the Chemung Mining Company, and the court was induced to believe that said Kennedy J. Hanly, who was one of the directors of said corporation, was the proper person to take the title to said real estate, and for that reason confirmed the sale and ordered the conveyance to be made to him; whereupon said administrator executed a conveyance to said Hanly. Thereafter said court set aside said last-mentioned order, and confirmed said sale to the Chemung Mining Company, and directed said administrator to convey a one-third interest in and to said Skookum mining claim to said company, which order said administrator refused to obey. Thereupon application was made to the judge of the district court in and for said Shoshone county for a writ of mandate to compel said administrator to convey said real estate to the Chemung Mining Company as directed by said last-mentioned order of the probate court. Said administrator answered the application or petition for said writ by setting forth the facts substantially as above set forth, and stating that under the order confirming the sale to Hanly he had received the purchase price from him, and executed a deed conveying to him the undivided one-third interest in and to said mining claim: and the matter was heard, and peremptory writ granted, whereby said administrator was required to convey said undivided one-third interest in and to said Skookum lode mining claim to said Chemung Mining Company. This appeal is from the judgment of the court granting said writ.

It is contended that the plaintiff or petitioner had a plain speedy and adequate remedy at law by appeal from the order confirming the sale to Hanly. In answer to that contention it is sufficient to say that the probate court set aside said order confirming the sale to Hanly on the thirteenth day of August, 1897, and entered an order confirming the sale to the Chemung Mining Company; and, further, that the order confirming the sale to Hanly was absolutely void, for the reason that the sale to Hanly was not reported "under oath" to said court, as required by the provisions of section 5491 of the Revised Statutes nor was it reported at all in writing to said probate court. The administrator is...