Spoors v. Cowen
| Decision Date | 07 December 1886 |
| Citation | 44 Ohio St. 497,9 N.E. 132 |
| Parties | SPOORS v. COWEN and others. |
| Court | Ohio Supreme Court |
Reserved in district court, Wood county.
The action below was a suit by the plaintiff, Rhoda Spoors against the defendant, to secure the possession of a certain tract of land, some two acres and a fraction, described in the petition. She derived title from her husband, John Spoors, who on the fourth March, 1879, conveyed all his real estate to his son Jerome, who on the same day, with his wife conveyed the land in question to the plaintiff. John Spoors having died, a petition was filed September 26, 1879, in the probate court of the county, to sell lands to pay debts; and under an order of sale made therein, the lands sought to be secured were sold to the defendant, and a deed made by the administrator on August 9, 1880. The common pleas rendered judgment in favor of the defendant, and the plaintiff prosecuted proceedings in error in the district court, where the cause was reserved for decision in this court upon the question whether the defendant Cowen acquired a title to the lands claimed by the plaintiff, under the proceedings had in the probate court, and the deed made by the administrator in pursuance thereof. The proceedings are set forth in a bill of exceptions taken at the trial in the common pleas, and the only controversy is as to the jurisdiction of the court to order the sale of the lands.
The petition of the administrator set forth the indebtedness of the estate, and the amount of the personal property; that it was insufficient to pay the debts; and that a short time previous to his death, and up to the fourth March, 1879, the decedent was the owner of certain real estate situate in the county, describing it, and then averred ‘ that on the fourth day of March, A. D. 1879, the said John Spoors decedent, being then very aged and infirm, and feeble in body and mind, and being deeply involved in debt, did, by his deed of that date, convey to the defendant Jerome Spoors all the above-described real estate; that the consideration expressed in said deed of conveyance for and of said real estate was six thousand ($6,000) dollars; that the defendant Rhoda Spoors, then the wife and now the widow of decedent, joined in said deed of conveyance; * * * that said conveyance of said land by said decedent to said defendant Jerome Spoors was in fact made without any other or further consideration than the promise of said defendant Jerome Spoors, who is the son of said decedent, that he would pay the debts of said decedent, and that he would keep and maintain the said decedent and his wife, now his widow, during their natural lives; that the promise of said Jerome Spoors to pay the debts of said decedent, and to keep and maintain said decedent and his wife, now his widow, during their said lives, was the whole consideration for said land paid and to be paid by said grantee, Jerome Spoors, to said decedents; that said Jerome Spoors has not paid the debts of said decedent, nor any part thereof, nor did the said Jerome Spoors keep and maintain said John Spoors, decedent, and his wife, during the life-time of said decedent, nor has he kept and maintained said Rhoda Spoors, widow of said decedent, since the death of said decedent, nor does he now keep and maintain her; that the petitioner has been and is now in the exclusive possession of said premises herein described since the death of said John Spoors, and the appointment of the petitioner as administrator of said estate; that said decedent died leaving Rhoda Spoors, his widow, who is entitled to dower in said premises, and the following-named persons his heirs at law, having the next estate of inheritance to said premises, as follows,’ naming them. The only prayer for relief against the widow was ‘ that the dower of the said Rhoda Spoors may be set off and assigned to her.’ It also contained a prayer for an order to sell the land, being something over a hundred acres, for the purpose of the proceeding.
An appearance was entered and an answer filed for the widow by the attorney who acted for the administrator, in these words: ‘ And now comes Rhoda Spoors, and, in answer to the petition of the plaintiff herein, says that she desires to inform the court that she waives the assignment by the court to her of her dower estate in the land of her late husband, John Spoors, and elects to take her dower in said estate in money, and prays the court to protect her interest in said estate.’
On December 9, 1879, the cause came on for hearing; and, Jerome Spoors admitting the averments as to himself to be true, the court found that it was necessary to sell the lands to pay the debts of the estate, and ‘ that the deed from the decedent to the said Jerome Spoors is null and void, and proved no title to said Jerome Spoors in said lands described therein, and in the petition herein; ’ and further found ‘ that the conveyance by defendant Jerome Spoors to the widow, Rhoda Spoors, of two acres of land, being part of the lands of said decedent not included in the 100 acres hereinbefore described, is null and void, and said Rhoda Spoors did not take any title to said two acres thereby; ’ and ordered the land to be appraised and sold ‘ free from the dower estate of said widow, Spoors, therein.’ The petition contains no allusion to any conveyance having been made to the widow of a part of the land, and no relief was asked as to her other than as before stated. The land was appraised and sold by the administrator, under the order, to Cowen. The sale was confirmed by the court, and a deed made to Cowen.
Lands that have been conveyed to defraud creditors, and that, by section 6139 of the Revised Statutes of Ohio, are made assets for the payment of the debts of the deceased grantor, cannot be ordered sold for such purpose, until the conveyance has been set aside in a proceeding commenced for that purpose in the court of common pleas, no such jurisdiction having been conferred upon the probate court.
When lands have been so conveyed, the possession of the lands after the death of the grantor, by his administrator, avails nothing in a proceeding begun in the probate court for their sale to pay debts, unless such possession had been acquired by a reconveyance from the fraudulent grantee, or those claiming under him, or in an action instituted for that purpose in the court of common pleas, as provided in section 6140 of the Revised Statutes.
An order made by the probate court for the sale of such lands, upon a judgment of its own, setting aside the conveyance as null and void, is of no validity whatever, and may be impeached in a collateral proceeding to recover the land.
The judgment of a court upon a subject of litigation within its jurisdiction, but not brought before it by any statement or claim of the parties, is null and void, and may be collaterally impeached.
There are, as we think, two different reasons for holding that upon the case as reserved to this court, judgment should be rendered for the plaintiff: (1) The probate court is not clothed with the jurisdiction it assumed to exercise in setting aside the conveyance to Rhoda Spoors;...
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