State v. McCracken

• Decision Date: 23 December 1931
• Docket Number: 6865.
• Citation: 6 P.2d 869,91 Mont. 157
• Parties: STATE ex rel. BRINK v. McCRACKEN.
• Court: Montana Supreme Court

6 P.2d 869

91 Mont. 157

STATE ex rel. BRINK v. McCRACKEN.

No. 6865.

Supreme Court of Montana

December 23, 1931

Rehearing Denied Jan. 20, 1932.

Appeal from District Court, Carter County; Stanley E. Felt, Judge.

Mandamus proceeding by the State, on the relation of Arthur Brink against William McCracken, as executor of the estate of J. C McCracken, deceased. From a judgment of dismissal, relator appeals.

Reversed and remanded, with directions.

See also, In re McCracken's Estate, 87 Mont. 342 287 P. 941.

Rudolph Nelstead, of Miles City, for appellant.

Daniel L. O'Hern, of Miles City, for respondent.

FORD J.

On September 20, 1928, defendant, as executor of the estate of J. C. McCracken, deceased, filed his petition in the district court, requesting an order of sale of certain real estate. On October 6, an order of sale was duly made and a sale had on December 1. Thereafter the executor filed a return and account of sale, and reported that he had sold the real estate for $2,060 and requested the confirmation of the same. The return and account was noticed for hearing for December 19. At the time fixed, plaintiff appeared in open court and offered in writing to purchase the real estate for $2,505, accompanying his bid with an initial payment of $250.50. The district court accepted plaintiff's bid, and, after a hearing, made and entered its order confirming the sale to him, and directed the executor to deliver a deed to plaintiff upon the payment of the balance of the purchase price. On May 6, 1929, the executor having refused to give the purchaser a deed, Elizabeth J. McCracken, the widow of J. C. McCracken, deceased, and one of the devisees and legatees under the will, filed a petition for the suspension of the executor, with allegations of cause for removal. Upon this petition a citation was issued to defendant requiring him, as executor, to show cause before the court why his letters should not be revoked. Thereafter, and on May 7, defendant filed a petition and motion to set aside the order confirming the sale of real estate theretofore made to plaintiff, upon the ground that the order was void. This motion was not served on Brink, and no disposition has been made of it by the court. The petition of Elizabeth J. McCracken came on for hearing on July 1, 1929, and defendant questioned the validity of the order of December 19, 1928, confirming the sale of real property to plaintiff, contending that such order was void on its face. The court adopted this view and vacated the order for the reason "that the court was without jurisdiction in making said order confirming said sale of real estate." Plaintiff's appeal from that order was dismissed on the ground that it was not taken within time. In re McCracken's Estate, 87 Mont. 342, 287 P. 941.

On August 25, 1930, Brink commenced this proceeding to compel defendant, as executor, by mandamus to execute and deliver a deed of conveyance of the real estate pursuant to the order of confirmation of December 19, 1928. An order to show cause was issued, answer was made, and a reply filed. Upon the issues framed, the cause was heard, and upon the testimony taken a judgment of dismissal was entered. This appeal is from that judgment.

Plaintiff contends that the order of July 1, 1929, vacating the order confirming the sale of real estate to him, is null and void, and that he is entitled to a deed upon the payment of the balance of the purchase price.

If the order of July 1st is void, all proceedings founded upon it are ineffective for any purpose. It was open to collateral attack, and may be set aside at any time. Oregon Mortgage Co. v. Kunneke, 76 Mont. 117, 245 P. 539; Heater v. Boston Montana Corporation, 75 Mont. 532, 244 P. 501. "Time does not confirm a void act." Section 8768, Rev. Codes 1921.

Under section 10210, Revised Codes 1921, an executor or administrator may, when the sale of the property of an estate is necessary in order to pay outstanding debts of the decedent, or the debts, charges, and expenses of administration, sell the real estate upon the order of the court or judge. Other sections specify what the petition to obtain an order of sale shall contain and detail the procedure to be followed to effect a sale. Sections 10211-10222, Id.

After sale, the executor or administrator must make a return of his proceedings to the court. After notice and upon a hearing, the court must examine the return and witnesses, and, if the proceedings were unfair, or the sum bid disproportionate to the value of the property sold, "and if it appears that a sum exceeding such bid at least ten per cent., exclusive of the expenses of a new sale, may be obtained, the court or judge may vacate the sale and direct another to be had, of which notice must be given, and the sale in all respects conducted as if no previous sale had taken place. If an offer of ten per cent. more in amount than that named in the return be made to the court, in writing, by a responsible person, it is in the discretion of the court or judge to accept such offer and confirm the sale to such person, or to order a new sale." Section 10225, Id. Upon the hearing, "if it appears to the court or judge that the sale was legally made and fairly conducted, and that the sum bid was not disproportionate to the value of the property sold, and that a greater sum, as above specified, cannot be obtained, or if the increased bid mentioned in section 10225 be made and accepted by the court or judge, the court or judge must make an order confirming the sale, and directing conveyances to be executed. *** If, after the confirmation, the purchaser neglects or refuses to comply with the terms of sale, the court or judge may, on motion of the executor or administrator, and after notice to the purchaser, order a resale to be made of the property." Section 10227, Id. The language of these sections is too plain to require interpretation.

Here at the hearing upon the return of the sale an offer of 10 per cent. more in amount than that for which the property had been sold by the executor was made to the court in writing, and the court, in the exercise of its discretion (section 10225, supra), accepted such offer and confirmed the sale to Brink, and an order of confirmation was duly made. The court had authority to accept the increased bid without ordering a resale. In re Bradley's Estate, 168 Cal. 655, 144 P. 136; In re Reed's Estate, 3 Cal. App. 142, 85 P. 155; In re Griffith's Estate, 127 Cal. 543, 59 P. 988; 11 Cal. Jur. 934; 24 C.J. 655.

The order confirming the sale to Brink operated to divest the heirs of their title, and secured to Brink the property thus sold. In re McLure's Estate, 76 Mont. 476, 248 P. 362; Plains Land & Improvement Co. v. Lynch, 38 Mont. 271, 99 P. 847, 129 Am. St. Rep. 645. It is a final judgment, and, in the absence of an appeal, is as conclusive upon the rights of the parties, including the executor, as would be any adjudication by a court of competent jurisdiction, and is not open to collateral attack. Leininger v. Reichle, 317 Ill. 625, 148 N.E. 384; Kietzer v. Nelson, 157 Minn. 463, 196 N.W. 641; Fry v. Heargrave, 129 Kan. 547, 283 P. 626; Lake v. Hathaway, 75 Kan. 391, 89 P. 666; Cook's Adm'r v. Campbell, 231 Ky. 401, 21 S.W.2d 654. Of course it would not validate a void sale, as when there was no jurisdiction in the court to order it; but, unless the order is void, it is not open to collateral attack. If there had been fraud, mistake, or any other like ground for which a court of equity would avoid a sale made by one person to another, defendant would have had reason for asking for equitable relief.

The record discloses that all of the proceedings relating to the sale and the confirmation thereof to plaintiff were regular, and, in consequence, the court was without jurisdiction to enter its order of July 1, 1929, vacating the order of December 19, 1928, confirming the sale of real estate to plaintiff.

It is contended by defendant that mandamus is not the proper remedy, since "plaintiff had available a plain, speedy and adequate remedy at law by appeal" from the order of July 1, 1929. Mandamus is a proper remedy when there is not a plain, speedy, and adequate remedy at law. Section 9849, Rev. Codes 1921. It lies "to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station." Section 9848, Id.; State ex rel. Federal Land Bank v. Hays, 86 Mont. 58, 282 P. 32; Kalman v. Treasure County, 84 Mont. 285, 275 P. 743.

Was defendant under a legal duty to make a conveyance to plaintiff? Section 10228, Revised Codes 1921, definitely answers the question. After the order of confirmation has been made by the court or judge (section 10227, supra) "conveyances must thereupon be executed to the purchaser by the executor or administrator." Section 10228, su...