Plains Land & Improvement Co. v. Lynch
| Decision Date | 08 February 1909 |
| Citation | 99 P. 847,38 Mont. 271 |
| Parties | PLAINS LAND & IMPROVEMENT CO. et al. v. LYNCH et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Missoula County; Geo. B. Winston, Judge.
Action by the Plains Land and Improvement Company and others against Charles A. Lynch and others. Judgment for defendants, and plaintiffs appeal. Reversed and remanded.
H. J Burleigh, Woody & Woody, Marshall & Stiff, and W. H. Poorman for appellants.
H. C. Schultz, H. D. Folsom, Jr., W. N. Noffsinger, and T. J. Walsh, for respondents.
This is an action to quiet title. The plaintiffs claim under a deed from the administratrix de bonis non of the estate of Neptune Lynch, Sr. The defendants are three of the four heirs at law of Neptune Lynch, Sr., and claim an estate in the property in controversy by inheritance. The trial court found the issues in favor of the defendants, and a decree was rendered and entered quieting their title to an undivided three-fourths interest in the land in controversy, subject, however, to a lien in favor of the plaintiffs for $1,854.80; that being three-fourths of the amount paid for the property at the sale by the administratrix. From the judgment and order denying them a new trial, the plaintiffs appeal. Counsel for respondents in their brief point out a number of defects in the probate proceedings leading up to the sale, which they insist render the sale void.
1. The first of these alleged defects relates to the petition to sell real estate. Section 7562 of the Revised Codes provides that a petition for the sale of real estate shall set forth (1) the amount of personal property that has come into the hands of the administrator; (2) how much thereof, if any, remains undisposed of; (3) the debts outstanding against the decedent, as far as can be ascertained or estimated; (4) the amount due upon the family allowance, or that will be due after the same has been in force one year; (5) the debts, expenses and charges of administration already accrued; (6) an estimate of what will or may accrue during the administration; (7) a general description of all the real property of which the decedent died seised, or in which he had any interest, or in which the estate has acquired any interest; (8) the condition and (9) the value thereof; (10) the names of the legatees and devisees, if any; and (11) the names of the heirs of the deceased, so far as known to the petitioner. The petition in this instance omits any reference, in terms, to the matters required in subdivisions 2, 4, or 10; attempts to state the requirements of subdivision 5 by giving the amount of debts, expenses, and charges of administration accrued and remaining unpaid; recites, with reference to the requirements mentioned in subdivisions 7, 8, and 9, that "the following is a full description of all the real estate of which the decedent died seised, or in which he had any interest, or in which said estate has acquired any interest: Lot Number One (1), and the N.E. 1/4 of S.E. 1/4 of Section Number Twenty-seven (27), Township Twenty (20) North, Range Twenty-six (26) West, less right of way of Northern Pacific Railway Company, and parcel set apart for school ground, and appraised at the sum of $2,000.00;" and in other respects the petition appears to have complied literally with the section above. The petition itemizes the personal property which had come into the hands of the administratrix, and prays for an order to sell all of it, so that it may be said to appear that all of the personal property that had come into her hands remained undisposed of. The petition also sets forth that Neptune Lynch, Sr., died intestate, and this may be treated as a sufficient statement that there are not any legatees or devisees. It does not appear from the petition what, if anything, is due upon family allowance, if any ever had been made. But, since the purpose of requiring these various items of debts, charges, and expenses to be stated is to inform the court of the financial condition of the estate, and whether or not in any event a sale of property is necessary, and since a family allowance is in fact a charge against the estate, and since the petition in this instance assumes to state the full amount of all of such charges, one of two conclusions seems inevitable: Either that there was not any family allowance made, or, if made, it is included in the total charges enumerated. However, this particular defect is not urged upon us by counsel for respondents in their brief, and we may treat the petition in this respect as complying substantially with the requirements of the statute.
The principal contention, however, arises over the alleged failure of the petition to state the condition and value of the real estate.
All that is said in the petition on the subject is quoted above. But counsel for appellants contend that the language "less right of way of Northern Pacific Railway Company and parcel set apart for school grounds, and appraised at $2,000," refers to the condition of the land and is a sufficient reference to enable the court to proceed with a hearing on the petition. We content ourselves with saying that, if this was intended for the purpose, it is so indefinite and uncertain as to be of no practical use; and since we must assume that the Legislature had some purpose in mind in requiring this matter to be stated, that purpose would obviously be circumvented by allowing a statement of this character to meet the requirement. We prefer to treat the petition as omitting any statement as to the condition of the real property. But is this such a defect as to render the order of sale void and open to collateral attack? As we understand counsel for respondents, they do not insist that every fact required to be stated by section 7562 is jurisdictional, for they do not insist upon a literal compliance with the statute, but concede that the rule of construction is that a substantial compliance with the requirements of the statute is all that is required. The object of the proceeding under this section is to obtain an order to sell, and, before such order can be made, the necessity for the sale must be made to appear; and while this section, in subdivision 11, requires the names of the heirs, so far as known, to be given, it is inconceivable that the name of a particular heir could be of the slightest possible assistance to the court or judge in determining whether the necessity for the sale exists. With the object of this proceeding before us, we imagine that it will be conceded by every one that a petition which on its face shows the sale to be necessary will be sufficient when drawn in question by a collateral attack upon the order of sale. But what are the facts which show the sale to be necessary? In the early case of Haynes v. Meeks, 20 Cal. 288, Chief Justice Field, speaking for the court, said in effect that the petition must show, first, the insufficiency of the personal property to pay the debts, and, second, the necessity for selling real estate, and that such necessity does not follow as of course from a mere insufficiency of personal property; that, if the real estate is yielding an income sufficient to pay the outstanding debts and charges, there would not be any necessity for a sale, and that the necessity must appear from the description of the land, its condition, and value. The opinion is further expressed that facts showing the description, condition, and value of the land cannot be dispensed with from the petition any more than the statement of the debts or personal property. This case was decided in 1862. In January, 1877, the same court, in construing the same statute, said: Smith's Estate, 51 Cal. 563. This was the last and controlling pronouncement by that court at the time we adopted the statute from California in February, 1877; and upon the theory that, in adopting the statute, we also adopted the construction placed upon it at the time by the highest court of the state from which we took the statute, we might content ourselves by saying that such construction must be deemed controlling, in the absence of any good reason for a contrary holding. It is only fair, however, to say that in 1880, after we had incorporated the statute in our Laws, the Supreme Court of California, in Boland's Estate, 55 Cal. 310, reiterated the doctrine announced in Haynes v. Meeks, and also that in Smith's Estate, and, by way of giving emphasis to the views of the court, said, in effect, that the description, condition, and value of the real estate are jurisdictional facts which must appear from the petition. Again, in Kertchem v. George, 78 Cal. 597, 21 P. 372, the doctrine announced in Smith's Estate is repeated; but the court there holds that, unless the condition of the real estate appears in the petition or in the order of sale, the sale is void for want of jurisdiction in the court to order it. Later, in Devincenzi's Estate, 119 Cal. 498, 51 P. 845, the same court held that an entire absence from the petition of any reference to the condition of the real estate would render the petition insufficient and the court would fail to obtain jurisdiction. At the same time it reiterates again the doctrine announced in Smith's Estate. In Burris v. Kennedy, 108 Cal. 339, 41 P. 458, the same court, speaking through Mr. Justice Temple, said: ...
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