Swinehart v. Turner, 4710

• Court: United States State Supreme Court of Idaho
• Writing for the Court: GIVENS, J.
• Citation: 259 P. 3,44 Idaho 461
• Decision Date: 05 July 1927
• Docket Number: 4710
• Parties: ANNIE SWINEHART, Appellant, v. THEO. TURNER, LUCY P. TURNER, PATRICK DUFFY and ANTONIA DUFFY, Respondents

259 P. 3

44 Idaho 461

ANNIE SWINEHART, Appellant,
v.
THEO. TURNER, LUCY P. TURNER, PATRICK DUFFY and ANTONIA DUFFY, Respondents

No. 4710

Supreme Court of Idaho

July 5, 1927

EXECUTORS AND ADMINISTRATORS - HUSBAND AND WIFE - COMMUNITY DEBTS - SETTLEMENT OF ENTIRE ESTATE NECESSARY - VOIDABLE PURCHASE - BONA FIDE PURCHASER-DEED PASSES TITLE-VENDORS AND PURCHASERS-NO KNOWLEDGE OR NOTICE OF FRAUD-SALE FOR VALUABLE CONSIDERATION NOT SET ASIDE.

1. On death of either spouse, administration draws to it settlement of entire community estate to satisfy community debts, making it necessary for probate court to assume jurisdiction over and administer both moieties of the community fund.

2. Though purchase by representative at his own sale is voidable, deed from him conveying property to bona fide purchaser for valuable consideration will pass title, and after such conveyance the original purchase will not be set aside.

[44 Idaho 462]

3. Sale to innocent purchasers for valuable consideration with no knowledge or notice of fraudulent purchase by grantor will not be set aside, if in fact grantor's purchase was fraudulent.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Ralph W. Adair, Judge.

Action to set aside deed. Judgment for respondents. Affirmed.

Judgment affirmed. Costs awarded to respondents. Petition for rehearing denied.

P. C. O'Malley, J. L. Downing, and Wm. J. Ryan, for Appellant.

The doctrine is familiar that an agent cannot, either directly or indirectly, have an interest in the sale of the property of his principal which is within the scope of his agency without the consent of his principal, freely given and after full knowledge of every matter known to the agent which might affect the principal (21 R. C. L., p. 829; 31 Cyc., pp. 1432-1437; Tyler v. Sanborn, 128 Ill. 136; 15 Am. St. 97, 21 N.E. 193, 4 L. R. A. 216; Bunker v. Miles, 30 Me. 431, 50 Am. Dec. 632; Meek v. Hurst, 223 Mo. 688, 135 Am. St. 531, 122 S.W. 1022).

To allow one acting in the fiduciary relation of agent to buy or sell to himself is a solecism in the realm of law; for the moral stamina of the average man is inadequate to preserving the fine glow of fidelity to his trust and confidential relation in such transaction; and the interdiction is enforced with a strong hand in courts of justice. (Montgomery v. Hundley, 205 Mo. 138, 103 S.W. 527, 11 L. R. A., N. S., 122; Moore v. Mandlebaum, 8 Mich. 433, 21 R. C. L. 830.)

An agent cannot without the knowledge or consent of his principal so negotiate the sale of his principal's realty as to get title of the same in himself. (Bookwalter v. Lansing, 23 Neb. 291, 36 N.W. 549; McKay v. Williams and McNenny, 67 Mich. 547, 11 Am. St. 597, 35 N.W. 159.)

"No executor or administrator must directly or indirectly purchase any property of the estate he represents, nor must he be interested in any sale." (C. S., sec. 7655.)

Not only are purchases by executors or administrators at their own sale of property of their testator or intestates inhibited by the rule but the prohibition extends to many of those standing in a confidential relation to them or to the estate; e. g., the husband of the executrix, or a partner of a partnership of which an executor or administrator is a member. (11 R. C. L., p. 360; Harrod v. Norris, 11 Mart. (La.) 297, 13 Am. Dec. 350; Turner v. Fryberger, 94 Minn. 433, 110 Am. St. 375, 103 N.W. 217.)

Where an agent practically conducts the sale, such agent in like manner will not be allowed individually to become a purchaser. (11 R. C. L., p. 360; Buckles v. Lafferty's Legatees, 2 Rob. (Va.) 292, 40 Am. Dec. 752.)

"No administrator or executor shall purchase any claim against the estate he represents; and if he pays any claim for less than the normal value he is only entitled to charge in his account the amount he actually paid." (C. S., sec. 7689.)

As a general rule a sale of realty can be authorized only for the payments of debts which were in existence at the time of decedent's death. And an order of sale by the probate judge in the absence of proof of unsecured debts due and owing at the time of the death of the decedent is void for want of jurisdiction. In accordance with the rule just stated the right to order a sale for the payment of the expenses of administration has been very generally denied. (24 C. J., p. 549; In re Webster, 74 Ore. 189, 145 P. 1063; Dubois v. McLean, 4 McLean, 486, F. Cas. No. 4107; Beadle v. Steele, 86 Ala. 413, 5 So. 169; Dean v. Dean, 3 Mass. 258; Matter of Catlin, 57 Misc. 269, 109 N.Y.S. 542.)

Where a statute requires an administrator to give an additional bond upon sale by him of the lands of his estate, his omission to give such bond renders the sale void. (Currie v. Stewart, 27 Miss. 52, 61 Am. Dec. 500, and note: Williamson v. Williamson, 3 Smedes & M. (Miss.) 715, 41 Am. Dec. 636; Campbell v. Knights, 26 Me. 224, 45 Am. Dec. 107.)

Where the period of notice of sale is prescribed by statute, it has been held that if the notice fall short of the requirements of the statutes the sale is absolutely void. Also the requirements of the statutes as to posting should be followed. (24 C. J., pp. 625, 626; Tappan v. Dayton, 51 N.J. Eq. 260, 28 A. 1; Parsons v. Lanning, 27 N.J. Eq. 70; State v. Hand, 41 N.J.L. 518; Kline v. Shoup, 35 Idaho 527, 207 P. 584.)

It is a general rule that the probate courts have no jurisdiction except over the estates of deceased persons and they cannot administer the estate of a living person; then how can a probate court assume jurisdiction over the share of the survivor which in the state of Idaho the supreme court has repeatedly held is vested in the survivor and does not come to him or her through the deceased spouse? The administrator of the succession of the deceased wife is without right or authority to take possession or assume control of property held in community between the deceased and the surviving husband. (Verrier v. Lorio, 48 La. Ann. 717, 19 So. 677.)

A mere volunteer who institutes proceedings in probate upon an...