Poston v. Delfelder

• Decision Date: 01 October 1928
• Docket Number: 1486
• Parties: POSTON v. DELFELDER [*]
• Court: Wyoming Supreme Court

270 P. 1068

39 Wyo. 163

POSTON v. DELFELDER ^[*]

No. 1486

Supreme Court of Wyoming

October 1, 1928

Rehearing Denied January 3rd, 1929, Reported at: 39 Wyo. 163 at 179.

ERROR to District Court, Fremont County; BRYANT S. CROMER, Judge.

Lon J Poston petitioned the Probate Court for an order directing Evelyn M. Delfelder, as executrix and sole legatee, of the last will and testament of Jacob A. Delfelder, deceased, to convey to him property purchased under an agreement with Delfelder during his lifetime. There was an order made for such conveyance. Subsequently, Delfelder as Executrix and sole legatee moved for the vacation of said order which motions were sustained and plaintiff brings error.

Order reversed.

William E. Mullen and Corthell, McCullough & Corthell, for plaintiff in error.

The executrix acknowledged service of the petition, waived objection to the granting of the prayer for an order of conveyance which was made; conveyances were made pursuant to said order; five years thereafter, the defendant in error as executrix and sole legatee under the will of the deceased moved the vacation of the sale order and conveyance which order was sustained. Procedure for vacation or modification of judgments after the term, is prescribed by 5923-5934 C. S. and is applicable in the present case. Parrott v Court, 20 Wyo. 494; Land Co. v. Hoffman, 30 Wyo. 238; Kelley v. Ediam, 32 Wyo. 271; Boulter v. Cook, 32 Wyo. 461; Reid v. Fillmore, 12 Wyo. 72; Mitter v. Coal Co., 28 Wyo. 439. The rule applies to probate proceedings. Connoly v. Probate Court, (Id.) 136 P. 205; Johnson v. Johnson, 26 Ohio St. 357, C. S. 6739. The Common Law rule that jurisdiction ceases after the term is therefore controlling, 34 C. J. 210. The sole ground of the motions was that the Poston petition failed to allege that the agreement was "in writing" citing 6958-6966 C. S. and Cory v. Hyde, 39 Cal. 469; Dick's Estate, 74 Cal. 374; Wadleigh v. Phelps, (Cal.) 87 P. 93; and Bullerdick v. Hermsmeyer, (Mont.) 81 P. 334. The rule that a foreign statute is adopted with the settled construction given it in a foreign state, is not conclusive. 36 Cyc. 1156. Iron Works v. White, (Col.) 71 P. 384; Rhea v. State, (Neb.) 88 N.W. 789; State v. Mortenson, (Utah) 73 P. 562. Pleadings are construed liberally, 5686 C. S. Judgments directly attacked shall not be reversed for defects in pleadings not affecting special rights, 5708 C. S. The petition was amendable. Kuhn v. McKay, 7 Wyo. 42; R. R. Co. v. Pollock, 16 Wyo. 321; Quinlan v. Jones, 27 Wyo. 410; Sowers v. King, 32 Wyo. 167; James v. Lederer, 32 Wyo. 377; Land Co. v. Hoffman, supra. Objections to the pleading should have been made at the trial. State v. Court, 31 Wyo. 413; Holt v. Cheyenne, 22 Wyo. 212. The omission was not a material one; this statute and the statute of Frauds are pari materia. The petition need not state that the contract was in writing, 20 Cyc. 308. Shoe Co. v. Brooks, 9 Wyo. 424; Mead v. Lee Sharp Co., 32 Wyo. 313; Sowers v. King, 32 Wyo. 167. Defendant admitted the allegations of the petition and waived objection thereto in the District Court; the jurisdiction of the probate court was not questioned. Art. V, Sec. 10, Const. Lethbridge v. Lauder, 13 Wyo. 9; Rice v. Tilton, 14 Wyo. 101; Clark v. Rossier, (Ida.) 78 P. 360; Magee v. Co., (Wash.) 99 P. 17; Johnson v. Canty, (Calif.) 123 P. 264; Crew v. Pratt, (Cal.) 51 P. 38; Grignon v. Astor, 2 How. 319. Defendant having appeared and consented to the proceedings is estopped. Beyer v. Lefevre, 186 U.S. 114; Bell v. Farmville Co., (Va.) 20 S.E. 942; Malone v. Meres, (Fla.) 109 So. 677; Bank v. Thompson Co., (Mo.) 210 S.W. 868. The order was not subject to collateral attack. Edwards v. White, (N. C.) 103 S.E. 901; Tallman v. McCarty, 11 Wis. 401; Salisbury v. LaFitte, (Colo.) 123 P. 124. Probate judgments imply a finding of needful jurisdictional facts. Kavanagh v. Hamilton, (Colo.) 125 P. 512; State v. Kaufman, (Wash.) 149 P. 656. One appearing and consenting to a hearing may be estopped thereafter from challenging the jurisdiction. Com. v. Assur. Corp., (Colo.) 241 P. 729; Ry. Co. v. Gregg, (Ind.) 102 N.E. 961; Land Co. v. Hoffman, supra. The doctrine of waiver which often merges into the doctrine of estoppel, is applicable to this case. Bamforth v. Ihmsen, Admr., 28 Wyo. 282. This is a plain case for the doctrine of estoppel. O'Keefe v. Foster, 5 Wyo. 343; Balch v. Arnold, 9 Wyo. 317; Gustin v. Hardin, 20 Wyo. 1; Seaman v. Big Horn Canal Assn., 29 Wyo. 391; Edwards v. Co., 246 F. 773; Bank v. Haid, (Kan.) 155 P. 57; Wells v. Steckelberg, 72 Neb. 865; Shields v. Lakin, 21 O. S. 660; Carbee v. Hopkins, 21 Vt. 435. A judgment by consent is conclusive as an estoppel upon the parties. Harding v. Harding, 198 U.S. 317. The order of sale involved personal property and was erroneously vacated. Bank v. Steinhoff, 11 Wyo. 290. The petition for conveyance, contained all of the essentials of a cause of action under the probate statute or in equity. Confession of the cause of action tended rather to eliminate than to emphasize any defects in form or procedure, and the consent order entered upon the pleadings, added further weight to this consideration. Objections and criticisms open to the parties in the progress of a trial are rightly held to be foreclosed by judgment.

E. E. Enterline and E. Paul Bacheller, for defendant in error.

The rule that the adoption of a statute from another state includes a construction placed thereon by courts of said state, is something more than a mere rule of comity and convenience. It has long been recognized as a fundamental principle by this Court. Crumrine v. Reynolds, 13 Wyo. 111; Coal Company v. Kennedy, 15 Wyo. 97; Wood v. Wood, 25 Wyo. 26; Cook v. Elmore, 25 Wyo. 393; Black's Estate, 30 Wyo. 35. The petition for conveyance was insufficient to challenge a judicial inquiry within the rule of James v. Lederer, 32 Wyo. 377. The petition alleges that a sale was negotiated by and through an authorized agent; this would be insufficient under the statute of frauds, 27 C. J. 364; 25 R. C. L. p. 534; Bank v. Bank, 59 F. 338. The District Court was not exercising general jurisdiction while sitting in probate, hence the authorities cited by opposing counsel are not in point. Cory v. Hyde, 49 Cal. 469; Bullerdick v. Hermsmeyer, 81 P. 334; 11 California Jurisprudence 614. Jurisdictional facts must be pleaded in probate proceedings, 6673 C. S. District Courts in the states of California and Montana, exercise original and exclusive jurisdiction in probate. Art. 6, Sec. 5, Cal. Const., Art. 8, Sec. 11, Mont. Const. The Probate Court could not declare probate jurisdiction where none existed. Boulter v. Cook, 32 Wyo. 461. The Executor was a trustee for creditors, Bank v. Ludvigsen, 8 Wyo. 230. Black's Estate, 30 Wyo. 55. The movant never received any of the proceeds of the sale. The doctrine of estoppel does not apply. Carstensen v. Brown, 26 Wyo. 366. Specific performance is limited to transactions in writing and must be so alleged. 2 Bancrofts P. & R. 974-975, 24 C. J. 150-151. Healey's Estate, (Cal.) 70 P. 455; Bank's Estate, (Mont.) 260 P. 128; Baldwin v. Hermsay, 22 Mont. 541; Fickes v. Baker, (Calif.) 171 P. 819. The presumption as to jurisdiction of the District Court does not apply while sitting in probate. 34 C. J. 546; 1 Woerner 486; 11 Cal. Jur. 248; 250. Kelsey v. Carroll, 22 Wyo. 85; Church v. Quiner, 31 Wyo. 222. The order being void is subject to either direct or collateral attack. Black Judgments, 170; State v. Bates, 61 P. 905; Boulter v. Cook, 32 Wyo. 461; White v. Ladd, 68 P. 729. The Trial Court committed no error in vacating the order.

OPINION

Per Curiam:

This case involves proceedings under Sections 6958-6966, C. S. 1920.

Section 6958 provides that:

"When a person who is bound by contract in writing to convey any real estate, dies before making the conveyance, and in all cases when such decedent, if living, might be compelled to make such conveyance, the court or judge may make an order authorizing and directing his executor or administrator to convey such real estate to the person entitled thereto."

The other sections provide, among other things, for the filing of a verified petition by any person claiming to be entitled to a conveyance, "setting forth the facts upon which the claim is predicated;" for the appointment of a time and place for hearing the petition; for a hearing at which all persons interested in the estate may appear and contest the petition by filing objections in writing; for an order authorizing and directing the executor or administrator to execute a conveyance of the real estate if, after a full hearing upon the petition and objections, the court or judge is satisfied that the petitioner is entitled thereto; and for the execution of the conveyance by the executor or administrator according to the directions of the order. Section 6963 provides that, if the right of the petitioner is found to be doubtful, the court or judge must dismiss the petition without prejudice to the right of the petitioner to proceed by action.

In the matter of the estate of Jacob A. Delfelder, deceased, there was filed, June 27, 1921, a "petition for conveyance of real property" by Lon J. Poston, petitioner, against Evelyn M. Delfelder, executrix. The petition, so far as material for the purposes of this case, was as follows:

"Comes now the above named petitioner and represents to the Court and gives the Court to understand that prior to the death of the said Jacob A. Delfelder and on the 24th day of March 1921, said Jacob A. Delfelder did by and through his authorized agent, J. L. Marquis, of Fremont County, Wyoming negotiate as (a) sale to this Petitioner of certain sheep, horses and sheep camp equipment together with...