Pioneer Mortg. Co. v. Carter
| Decision Date | 06 December 1921 |
| Docket Number | 10349. |
| Citation | 202 P. 513,84 Okla. 85,1921 OK 418 |
| Parties | PIONEER MORTGAGE CO. v. CARTER ET AL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Under and by virtue of section 6328, R. L. 1910, the homestead upon the death of the widow leaving unmarried minor children is not subject to administration proceedings.
By virtue of section 2, art. 12, of the Constitution, and section 6330, R. L. 1910, upon the death of the widow leaving surviving unmarried minor children, the homestead is not subject to the payment of any debt or liability existing against the widow previous to or at the time of her death except such as are secured by lien thereon, or as provided in the laws relating to the homestead.
The phrase "Until it is otherwise disposed of according to law" in section 6328, R. L. 1910, means "It may be sold for taxes, or upon foreclosure of any mortgage thereon executed by both husband and wife, or upon execution to enforce judgment for the purchase price, or any part thereof or the enforcement of mechanic's lien."
An administrator filed a petition to mortgage a certain land, alleging the deceased died seized of the same, notice was published of the hearing said petition, and the court made an order authorizing the administrator to mortgage the same, and a mortgage was executed and approved by the county judge. Thereafter the mortgagee commenced an action to foreclose said mortgage, and the minor children were made parties, and defended on the theory the land was their homestead, and neither the administrator nor county court had any jurisdiction of the homestead. Held, where the probate records do not affirmatively show an adjudication that the land was not the homestead, the minors may plead and prove said fact, and, where the evidence is uncontradicted that the land was the homestead, the mortgage as to said minors is void.
The administrator or county court acquires no jurisdiction to mortgage the homestead of intestate, where she leaves surviving no husband, but unmarried minor children residing upon said homestead, and, if said mortgage is executed, a court of equity has the power to set the same aside at the instance of the minor children.
Appeal from District Court, Woodward County; J. C. Robberts, Judge.
Action by the Pioneer Mortgage Company against Orvie B. Carter, administrator of the estate of Lulu C. Epps, deceased, and others. Judgment for defendants, and plaintiff appeals. Affirmed.
Blair & Lillard, of Topeka, Kan., and S. M. Smith, of Woodward, for plaintiff in error.
Charles Swindall, of Woodward, for defendants in error.
The Pioneer Mortgage Company commenced this action in the district court of Woodward county against O. B. Carter, administrator of the estate of Lulu C. Epps, deceased, and the children of Lulu C. Epps, some of whom are minors, to foreclose a real estate mortgage executed by the administrator October 20, 1911, and approved November 18, 1911, by the judge of the court. A guardian ad litem was appointed for the minors, who filed an answer alleging that the land was the homestead of Lulu C. Epps, and had been occupied by her as such for many years, and that said land is now the homestead of said minor children. It is alleged the land was not an asset of the estate of Lulu C. Epps by reason of being her homestead, and the administrator never had any jurisdiction over said homestead or power or authority to execute a mortgage thereon.
Plaintiff filed a reply and attached thereto a copy of the proceedings of the county court authorizing the administrator to mortgage said land, which included the approval of the mortgage by the county judge, and pleaded the judgment of the county court ordering and authorizing said mortgage and confirmation of the same was res adjudicata, and not subject to attack in this proceeding.
There is no dispute regarding the facts, which are substantially as follows:
Walter E. Epps filed upon the land as a homestead, and with his wife and minor children lived on the same. Mr. Epps died before making final proof, and Lulu C. Epps, his widow, made final proof as the widow of the entryman, and the patent was issued to her. Mrs. Epps died the 30th day of May, 1911. She occupied the land continuously from the time of obtaining the patent until the time of her death with her six minor children.
The following proceedings were had in the county court:
On the 19th day of June, 1911, a petition was filed for the appointment of administrator of the estate of Lulu C. Epps, deceased. On the 19th day of July, 1911, O. B. Carter was appointed administrator, and on said date filed his bond, took the oath of office, gave notice to creditors to present their claims, on the same date an order was made appointing appraisers, and on said date the administrator filed an application for an order to mortgage said land, alleging that the deceased at the time of her death was seized of the land in question, and the same was free from incumbrance, that she also possessed two head of milk cows, three horses, and farming implements, and alleged that the personal property was mortgaged, and it would be to the best interest of the estate to mortgage the real estate to pay the debts of said estate or as much as was secured by chattel mortgages. On the 8th day of August the court made an order authorizing the administrator to execute a mortgage upon the real estate for the sum of $500 for paying the debts of the estate. The appraisers filed their report on the 21st of August, 1911, listing the property of the estate as follows, to wit: Real estate, being the land in question, appraised at $1,500; two milk cows, $60; three horses, $150; and farming implements, $12.
Upon trial of the case to the court the trial court held the mortgage void and rendered judgment against the plaintiff. From said judgment the plaintiff has appealed.
For reversal the plaintiff in error contends that the order of the county court authorizing the administrator to mortgage said lands and the approval of said mortgage by the judge of the county court are res adjudicata and cannot be attacked in this proceeding.
The power and authority of the administrator to mortgage real estate belonging to the estate is that granted by section 6364, R. L. 1910, which section was in force and effect at the time of executing the mortgage. The section has been amended since the execution of the mortgage, but this case is controlled by the section, as it existed before the amendments. The section provides, in substance, that the county judge may, upon petition supported by testimony showing the best interests of the estate demand it, grant authority to the administrator to mortgage real estate belonging to the estate, provided that in no case shall authority be granted by said judgment to any administrator or guardian to mortgage said real estate for a greater sum than is necessary to pay the then existing debts and liabilities to which said estate or any part thereof is then legally liable to be ordered sold.
It is admitted in this case that the land was the homestead of the deceased and was occupied by deceased and the minor children at the time of her death as such, and it is admitted that five of the children are minors or were at the time of mortgaging the property.
We will first consider whether the administrator has any power or authority to mortgage the homestead for the payment of debts against the estate and what jurisdiction the administrator has over the homestead.
Section 6328, R. L. 1910, provides in substance as follows:
"Upon the death of either husband or wife, the survivor may continue to possess and occupy the whole homestead, which shall not in any event be subject to administration proceedings, until it is otherwise disposed of according to law; and upon the death of both husband and wife the children may continue to possess and occupy the whole homestead until the youngest child becomes of age."
Section 6330, R. L. 1910, provides as follows:
"The homestead is not subject to the payment of any debt or liability contracted by or existing against the husband and wife, or either of them, previous to or at the time of the death of such husband or wife, except such as are secured by lien thereon, as provided in the laws relating to homesteads."
Section 2, art. 12, of the Constitution provides in substance that the homestead of the family shall be and is protected from enforced sale for the payment of debts.
Section 8417, R. L. 1910, provides:
"The property, both real and personal, of one who dies without disposing of it by will, passes to the heirs of the intestate, subject to the control of the county court, and to the possession of any administrator appointed by that court for the purpose of administration."
If we give force and effect to the sections of the statute above referred to and the Constitution, the land in question, being the homestead, was not subject to administration proceedings unless it comes within the provision of section 6328, supra, to wit, "until it is otherwise disposed of according to law." This portion of the section of the statute was construed by this court in the case of Holmes v. Holmes, 27 Okl. 140, 111 P. 220, 30 L. R. A. (N. S.) 920, to mean:
"It may be sold for taxes, or upon foreclosure of any mortgage thereon executed by both husband and wife, or upon execution to enforce judgment for the purchase price or any part thereof, or in the enforcement of a mechanic's lien."
It is therefore apparent under section 6328, which provides:
"The whole homestead, which shall not in any event be subject to administration proceedings, until it is otherwise disposed of according to law."
The land, being a homestead, was not subject to...
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