34 Wash. 299 | Wash. | 1904
This appeal is prosecuted from a decree of the lower court adjudging certain probate proceedings in the estate of J. B. Ball, deceased, void, and setting aside an administrator’s deed for the south half of the northeast quarter, and the north half of the southeast quarter, of section 24, township 35 north, of range 4 east. Defendants claim title to different parts of said real estate under said deed.
The facts shown by the record are substantially as follows: Jesse B. Ball died on February 4, 1889, leaving an
On February 18, 1889, the will was admitted to probate by the probate court of Skagit county, in the then territory, and the executors named in the will were appointed to carry out the provisions thereof. They were required to file a bond in the sum of $12,000. A joint and several bond was executed and filed by said executors, which bond was, by order of the probate court, approved and entered of record. The executors thereupon qualified by taking
On November 18, 1889, Mr. Marshall, one of the executors, filed with the probate court his resignation, without attempting to comply with the statute; and on the same day the said court entered an order accepting the resignation, and discharging Mr. Marshall as executor, and releasing the sureties on his official bond. Thereafter, on December 5, 1889, the other executor, Mr. Smith, filed his resignation, and published a notice thereof, as required by law, to the effect that he had filed his account as executor and resignation of his trust, and that the same would come on for hearing on January 28, 1890, at two o’clock P. M., “and all persons interested in said estate are notified to appear and show cause why the said account shall not be settled and said resignation accepted.” On the 28th day of January, 1890, no one objecting, the resignation was accepted and Mr. Smith discharged as executor, and the sureties on his official bond Were released. At the same time and place Caroline Ball filed her petition asking the appointment of said Smith and one Harrison Clothier as administrators of the estate. No notice of this application was given to any one, and the court, in the same order which discharged Mr. Smith as executor, appointed him, together with Mr. Clothier, as administrators de
Thereafter, on March 25, 1890, these administrators presented their petition, containing allegations substantially as required by statute, for the sale of the real estate now in question. On the next day the probate court issued an order directing all interested parties to appear on April 23, 1890, and show cause why the said real estate should not be sold. A copy of this order was published four times in a newspaper, but four weeks’ time did not elapse between the first publication and the date of the hearing. A copy of the notice was served on the widow. No notice was given to the minors, and no guardian ad litem was appointed for them.
On April 23, 1890, at the time set for the hearing, no one appearing to contest the petition, an order was made directing the sale of the real estate. No time or place for the sale was fixed by the order. The administrators thereupon fixed the time, and due notice thereof as required by law was given. The sale was held on May 20, 1890, at public auction, and the property was sold to John P. Millett, one of the appellants, for $9,100. A return of the sale was made and filed in the probate court on the 24th day of May, 1890, which was on Saturday. An order was made on the 26th day of May, 1890, confirming the sale. Thereupon an administrator’s deed was executed and delivered to the purchaser. The purchase price was paid and accounted for to the estate. After Mr. Millett purchased the property, he conveyed the same to Mr. Murdock, one of the appellants, who platted a part of the land into town lots, and afterwards conveyed it to the' Grand Junction Land Company, which company sold some of the lots to
In 1891 the administrator J. E. Smith died, and thereafter the surviving administrator, H. Clothier, administered upon the estate until September 18, 1897, when his final account was approved and he was discharged. E. C. Million was thereupon appointed administrator in his stead. Mr. Million appears to have done nothing with the estate until March 29, 1901, when, upon his petition after the minor heirs had become of age, he Was discharged, and all that remained of the estate was distributed to the respondents Anthony W. Ball and Zula Matilda Ball Manning. Up to March 1, 1893, no guardian ad litem, was ever' appointed for the said minors, Anthony W. Ball and' Zula Matilda Ball; they were not served with any notice of any of the petitions, or any of the proceedings in the course of administration up to that time, although during all of said times they were residents of Skagit county, were named as minor heirs, and were the sole beneficiaries of the real estate being administered upon. Subsequent to March 1, 1893, they were represented in all proceedings by a guardian ad litem appointed by the court.
After becoming of age and on May 10, 1901, these heirs executed a power of attorney to Warren T. Ball, authorizing him “to grant, bargain, sell, convey, mortgage, or dispose of any and all real estate within the state of Washington in which We may have any interest.” The said Warren T. Ball, acting under said power of attorney, joined in the petition of Million for a discharge as administrator, and for a distribution of the estate. Mr. Million was thereupon discharged and the estate distributed to the respondents, who brought this action within one year -after arriving at their majority, seeking to review the orders and errors of the probate court in direct
After motion to make the complaint more definite and certain, and to strike certain portions thereof, and demurrers had been overruled, defendants answered separately, denying generally the allegations of the complaint and alleging, that the probate court proceedings were regular; that the administrator’s sale in all respects complied with the law; that Millett, the purchaser of the land at administrator’s sale, conveyed the property to William Murdock, that Murdock thereafter platted a half of it into town lots, streets, and alleys, known as Grand Junction Land Company Addition to Woolley, and that all the defendants are bona fide purchasers and claim title through Murdock; that the full purchase price at administrator’s sale, viz., $9,100, was paid and the amount accounted for in the due course of administration of the estate, and that said sum was the reasonable value
Upon a trial the lower court refused to find actual fraud on the part of the administrators, but found and concluded, that the appointment of Smith and Clothier as administrators of the estate was void; that the order of sale of the real estate was made without jurisdiction; that the order confirming the sale, and the administrator’s deed of the property, were void; that the plaintiffs are the owners in fee simple, and entitled to the possession, and are entitled to a decree quieting their title against the defendants; and refused the relief prayed for by defendants.
Many questions are presented on this appeal. They are all argued at length in the voluminous briefs filed herein, We pass all of them by without further notice except such as we deem material and necessary to a determination of the case. Appellants’ first point is that the complaint fails to state a cause of action, for the reason that there is no provision in our statute authorizing an action by a minor, after reaching his majority, to review alleged
Section 5153, Bal. Code, clearly authorizes an action to vacate or modify a judgment or order of the superior court, and §§ 5156, 5157 provide the form and procedure in such actions. Section 5153 is as follows:
“The superior court in which a judgment has been rendered, or by which or the judge of which a final order has been made, shall have power, after the term (time) at which such judgment or order was made, to vacate or modify such judgment or order: ... 5. For erroneous proceedings against a minor or person of unsound mind, when the condition of such defendant does not appear in the record nor the error in the proceedings; . . . 8. Eor error in a judgment shown by a minor, within twelve months after arriving at full age.”
Appellants contend that this section relates exclusively to the superior court, and has no relation whatever to the proceedings in inferior courts, or to a proceeding in probate, and that proceedings to review an erroneous order or judgment must be brought in the court in which the order was entered. This statute w'as enacted in territorial days when the probate court was an independent inferior court. The orders complained of were made by the territorial probate court. When the constitution was
Appellants further contend that, because there was no statutory provision for the old probate court to vacate and set aside its orders and judgments, none exists in the superior court for that purpose. Independent of the inherent powers of all courts to vacate and set aside their oWn orders and decrees for fraud, and independent of statute where the common law is in force and unmodified, a bill of review is the proper method of obtaining the vacation or annulment of an order or decree for errors apparent upon the face of the record or for fraud. 1 Black, Judgments (2d ed.), §301.
Passing by many irregularities argued in the briefs relating to the appointment and qualification of the administrators, we shall consider the main question, which relates to the validity of the sale of the real estate. The court below properly refused to find any actual fraud in fact on the part of the administrators in the conduct of the sale. The petition for the sale of the land substanitally complied with the statute, but there was no service, or attempt at service, of the petition or notice of the hearing upon the minor heirs, except an insufficient publication directed to all interested parties. Tío guardian ad litem was appointed for them; they had no general guardian; no appearance was made by any person for them upon the hearing as to the necessity for the sale. The court nevertheless directed the sale of the land. The sale was made on the day provided in the notice. A return thereof wias subsequently made, and, without an opportunity for an objection, was confirmed and a deed issued. The purchase price was paid, and the estate had the benefit thereof.
Appellants contend that the statute relating to notice and sale was merely directory; that the proceedings are in rem; and, since the court had jurisdiction in rem
“If any of the devisees or heirs of the deceased are minors, and have a general guardian in the county, the copy of the order shall he served on the guardian. If they have no such guardian, the court shall, before proceeding to act on the petition, appoint some disinterested person their guardian for the sole purpose of appearing for them and taking care of their interests in the proceedings.” Section 1497, Code of 1881.
This provision for the appointment of a guardian for minors was mandatory. If the court had jurisdiction o\-er the estate, it was also necessary that it acquire jurisdiction over the persons of the minor heirs before proceeding to divest them of their title, because the statute expressly required the minor heirs to he represented. They could not waive this right, and the court could not waive it.by-non-compliance Avith the statute. Fiske v. Kellogg, 3 Or. 503. The ease of Bloom v. Burdick, 1 Hill 130,
“The surrogate undoubtedly acquired jurisdiction of the subject matter, on the presentation of the petition and account; but that was not enough. It was also necessary that he should acquire jurisdiction of the persons to be affected by the sale. It is a cardinal principle in the administration of justice, that no man can be condemned or divested of his right, until he has had the opportunity of being heard. He must, either by serving process, publishing notice, appointing a guardian, or in some other way, be brought into court; and if judgment is rendered against him before that is done, the proceeding mil be as utterly void as though the court had undertaken to act where the subject matter Was not within its cognizance.”
When the statute required the appearance of the minor heirs by guardian ad litem before the court should make the order of sale, it was necessary for such appearance, even if the proceedings Were in rem. The order of sale was therefore without the authority of law, and was void as to the minor heirs. Wallace v. Grant, 27 Wash. 130, 67 Pac. 578.
Appellants contend that, under the curative act of 1890, § 6474, Bal. Code, the heirs were not entitled to avoid the sale in this ease. That section is as follows:
“In case of an action relating to any estate sold by an executor, administrator or guardian, in which an heir or person claiming under the deceased, or in which the ward or any person claiming under him, shall contest the validity of the sale, it shall not bd voided on account of any irregularity in the proceedings; Provided, It appears,— (1) That the executor, administrator, or guardian was ordered to make the sale by the probate or superior court having jurisdiction of the estate; (2) That he gave a bond which was approved by- the probate or superior judge, in case a bond was required upon granting the order; (3)*312 That he gave notice of the time and place of sale, ns in the order and by law prescribed; and (4) That the premises were sold accordingly, by public auction, and the sale confirmed by the court, and that they are held hy one who purchased them in good faith.”
It would appear from this section that, if all the requirements named were complied with, other irregularities would be insufficient to avoid the sale, and, if all the requirements named were not fulfilled, then the sale may be avoided. In Wallace v. Grant, supra, we held that, where a petition to mortgage or sell real estate was not verified, and failed to show that the personal estate was exhausted, or that the same was insufficient to pay the debts of the administration, the probate court did not acquire jurisdiction to make an order of sale or mortgage In Dormitzer v. German Savings &. Loan Society, 23 Wash. 132, at page 192, 62 Pac. 862, we held that this section related only to irregularities, and did not go to the jurisdiction of the court. And in Hazelton v. Bogardus, 8 Wash. 102, 35 Pac. 602, where the petition, in describing the lands to be sold, was so defective that tiie lands could not be located, it was held that this section did not cure the defect. In Acherson v. Orchard supra, where the court had jurisdiction, and the proper notice was given, and all the provisions of § 6474, supra, were complied with, it was held that other irregularities did not avoid the sale. As we have seen above, the probate court had no jurisdiction to order the sale by reason of the absence of notice to the minor heirs and failure to appoint a guardian ad litem for them, and therefore, under the authorities above named, the curative act does not apply, and the minors may therefore avoid the sale.
Appellants also contend that, because the plaintiffs, after arriving at their majority, joined in a petition for
The final account of the former administrators, which involved the sale and the proceeds thereof, had long since, and during the minority of the respondents, been finally settled, so far as the administration was concerned. It was therefore not necessary for Mr. Million to include in his final account matters which had already been settled. Hor was it necessary or proper for the court, upon the final discharge of Mr. Million, upon its own motion to open up matters which had already been determined, and which were not then called to its attention, and this was not attempted to be done. Furthermore, it is not shown that the respondents, at the tme they accepted a part
Appellants contend that, in case the title to the real estate is avoided in this action, they should each he awarded their proportionate share of the original purchase price paid to the estate, and the taxes paid since sale, and the value of the improvements placed thereon, This relief Was denied them hy the court helow. We think, in justice and equity, the relief prayed in that regard, except for permanent improvements, should have been allowed. The court, in Sengfelder v. Hill, 21 Wash. 371, 58 Pac. 250, in considering the question of permanent improvements on real estate, held that, under the provisions of § 5511, Bal. Code, where defendants held under color of title,’ in good faith, as these appellants do, the value of such improvements could only he set off as against damages, and no recovery could he had therefor, Hence appellants are not entitled to recover for the items of improvements. The land was purchased from the estate in good faith hy the appellants and their predecessors in interest, and the purchase price thereof was paid into the estate, and used in the administration thereof, and these respondents received the benefit. They should not, under such circumstances, be permitted to avoid the sale without repaying the purchase price, and, upon the principles announced in Packwood v. Briggs, 25 Wash. 530, 65 Pac. 846, and subsequent eases, appellants should have a lien upon the realty for the items paid for taxes, for the rea
The judgment appealed from is therefore modified in respect of the purchase price paid for the lands at administrator’s sale, which was $9,100, and in respect of taxes paid by appellants since that time. The cause is remanded with instructions to the lower court to determine the respective amounts due each of the appellants, with interest at the legal rate, and to make the amounts thereof preferred claims against the said estate; appellants to recover their costs.
Hadley, Anders, and Dunbar, JJ., concur.