106 P. 522 | Utah | 1909
Lead Opinion
Appellant brought this action as a vendee of certain real estate to recover damages for a breach of an agreement to convey a marketable title by the respondent as vendor. Upon a trial to the court, the title was held marketable, and therefore that the agreement had not been breached, and judgment was entered accordingly, from which this appeal is prosecuted.
The judgment is based upon an agreed statement of facts, and hence no findings were made by the court. The facts agreed upon are substantially, as follows:
That on and prior to the 12th day of July, 1883, one Joseph Toronto was the owner in fee-simple of the real estate which appellant purchased from respondent; that said Toronto, on said 12th day of July, 1883, died intestate in Salt
The application for distribution, among other allegations, in substance, also contained the following: That all the debts and taxes due from said deceased had been paid; that all the heirs were of full age; that said deceased left no personal property, and the names of the heirs are given as they appear in the petition praying for letters of administration, 'and the part to be allotted to each is fully described; that all of the heirs and distributees joined in the
In the decree were also' contained the following findings;
“The above distributees are all the heirs of said deceased and the only persons interested in said decedent’s estate, and all . . . have duly and regularly waived and dispensed with notice of the hearing . . . for distribution. . . . That said court has full jurisdiction of all the heirs of said deceased . . . and full jurisdiction ... to distribute all the property of said deceased as the same is herein partitioned and distributed.”
The portion assigned to each person is specifically described.
Appellant concedes that the appointment of the administrator and the proceedings were regular and according to law up to the time of making distribution. He, however, asserts that the failure to give any notice of any kind of the hearing on the application for distribution makes the decree of distribution void as to all persons who may have or claim to have any interest in said estate except those wlm signed the waiver of notice or participated in the distribution. In other words, appellant contends that such a notice is jurisdictional, and that a decree of distribution without a notice is vulnerable to collateral attack. Distribution to the interested parties, without notice, it is asserted, amounts to the taking of property without due process of law.
In this case it will be observed that no presumption that notice was given may be indulged, since it is admitted that no notice of any kind was given, but that the publishing or giving of such a notice was waived by the several persons who claim to constitute the heirs of the decedent. No doubt, if such a notice is jurisdictional, as appellant asserts, then the decree cannot be binding except on those who participated in it, since the persons who claim to be the only heirs could notj by such a claim, exclude or bind others who may have or claim to have an interest in the estate. The whole question therefore hinges upon whether notice of the hearing on the application for distribution is essential to give the
This court, in Snyder v. Murdock, 26 Utah 233, 73 Pac. 22, has also, inferentially at least, held that probate proceedings are, in their nature, proceedings in rem. In a number of the foregoing cases it is also directly held, as it necessarily must be, that a decree of distribution is a proceeding in rem and not in “personam. By referring to our statutes upon the subject of administration, it will be seen that such proceedings are treated as proceedings in rem and not m personam. Section 3817, Comp. Laws 1907, among other things, provides that the petition for letters of administration must state the “facts essential to give the court juris-dicion of the case, and, when known to- the applicant, he must state the names, ages, and residences of the heirs of the decedent, and the value and character of the property.”
Section 3818 is as follows:
“When a petition praying for letters of administration is filed, the clerk must set the petition for hearing and give notice thereof by publication or by posting, and by mailing of notices to the heirs.”
Section 4026 provides the time for which notice must be given, and this court, in a direct proceeding (In re Bunting's Estate, 30 Utah 251, 84 Pac. 109) held that, unless the notice is given for the time and in the manner provided in said section, the court acquires no jurisdiction of the proceedings. Prom what is said in the opinion in that case it is at least inferable that if the notice is given as provided by the statute, the court acquires jurisdiction of the whole case; that is, of the property and of the persons interested in the estate. In other words, from what is there said it would seem that the notice which is given upon the filing of the petition for letters of administration is the jurisdictional notice, the giving of which, when given as required by the statute, brings not only the property, but the persons interested therein, within the jurisdiction of the court. In
“No order or decree affecting tlie title to real property, hereto fore or hereafter made in any probate or guardianship matter, shall he held to he void at the suit or instance of any person claiming adversely to the title of the decedent or ward, or under a title not derived from or through the decedent or ward, on account of any want of notice, defect, or irregularity in the proceedings, or of any defect or irregularity in such order or decree, if it appears that, before the order or- decree was entered, the executor, administrator, or guardian, as the case may he, was appointed by a court of competent jurisdiction, upon such notice as was or may be prescribed by law; and, in an estate in which a competent court shall have appointed an executor, administrator, or guardian upon due notice, no objection to any subsequent order or decree therein can be taken by any person claiming under the deceased ort under the ward, on account of any such want of notice, defect, or irregularity, in any other manner than on direct application to the same court, made at any time before distribution, or on appeal.”
Sectiou 4037 provides as follows:
“If all persons interested in an estate join in any petition, or signify in writing their assent thereto, notice may be dispensed with and the hearing had at any time.”
There are a number of other sections which provide for notice and prescribe the method of procedure, but it is not deemed material to refer to any of them, since to do so would not shed any light upon or aid in any way in disposing of the real question before us.
From the provisions contained in section 3779, it seems reasonably clear that probate proceedings are deemed to be proceedings in rem, and that the court acquires jurisdiction of the res — that is, the property of the
Quite a large number of cases in support of both contentions are cited by respective counsel. The leading case cited by counsel for respondent is Grignon's Lessees v. Astor, supra. In that case the question of the want of notice of the hearing on application by the administrator to sell real estate of the deceased to pay debts was involved. The question that the statutory notice was not given was raised in a collateral proceeding, and the Supreme Court of the United States in effect held that probate proceedings, in their nature, were proceedings in rem; that the probate court had acquired jurisdiction of both the property and all persons interested therein by the appointment of the administrator, and thereby, through him, obtained possession of the estate with full power to administer the same; that the notice of the hearing to show cause was not jurisdictional, and hence the judgment ordering a sale not assailable in a collateral proceeding. At page 339 of 2 How. (11 L. Ed. 283), Mr. Justice Baldwin, speaking for the court, said:
“The record of the county court shows that there was a petition representing some facts by the administrator, who prayed an order of sale; that the court took these facts which were alleged in the petition into consideration, and for these and divers other good reasons ordered that he be empowered to sell. It did then appear to the court that there were facts and reasons before them which brought their power into action, and that it was exercised by granting the prayer of the petitioner.”
It is further said, at page 340 of 2 How. (11 L. Ed. 283), that the provisions of the statute with respect to giving notice to the interested parties of the order to¡ show cause why a license to sell the land should not be granted did
“The court having power to make the decree, it can he impeached only by fraud in the party who obtains it. [United States v. Arredando] 6 Pet. 729 [8 L. Ed. 547]. A purchaser under it is not bound to look beyond the decree; if there is error in it, of the most palpable kind, if the court which rendered it have, in the exercise of jurisdiction, disregarded, misconstrued, or disobeyed the plain provisions, of the law which gave them the power to hear and determine the case before them, the title of the purchaser is as much protected as if the adjudication would stand the test of a writ of error; so where an appeal is given but not taken in the time prescribed by law. These principles are settled as to all courts of record which have-an original general jurisdiction over any particular subjects.”
In Wilson v. Hartford, Ins. Co., 164 Fed., at page 819, 90 C. C. A., at page 595, 19 L. R. A. (N. S.) 553, Hr. Justice Sanborn states tbe doctrine in tbe following language :
“A proceeding in a probate court to administer upon the estate of a deceased person is a proceeding in rem, not in personam,. The-property within the jurisdiction of the court is the defendant, the. executor or administrator is its representative, and all claiming any interest in that property under the deceased are parties to the proceeding.”
In Sheldon’s Lessee v. Newton, 3 Ohio St. 494, in referring to tbe effect that tbe failure to- give tbe beirs notice-of an application by tbe administrator to sell real estate to-pay debts bas upon tbe jurisdiction of tbe court, tbe Supreme Court of Obio uses tbe following language:
“The heir was required to be made a party to the proceeding with a view to his having notice; but it is nowhere intimated that a failure to give the notice should deprive the court of jurisdiction over the property. I am therefore strongly inclined to the opinion, that such an omission goes only to the regularity of the proceeding,, and not to the jurisdiction of the court.”
It was also, in effect, held that probate proceedings are proceedings in rem, and tbat, wben tbe jurisdiction of tbe probate court bas once attached through tbe appointment of' an administrator by tbe giving of a statutory notice, subse--
In speaking of this question, Mr. Chief Justice Dillon, in Good v. Norley, 28 Iowa, at page 208, said:
“The following cases relating to administrators’ sales, and that, too, under statutes providing that notice of the application should be given in terms as strong as in our statute, if not stronger, hold that the proceeding is in rem; that the provision as to notice is directory; and that, if not given, it does not deprive the court of jurisdiction; and hence an order for a sale, without such notice, or upon notice alone to the guardian, while irregular, and reversible on appeal, is not void, when collaterally attacked.”
In Mohr v. Manierre, 101 U. S. 423, 25 L. Ed. 1052, in speaking of the effect of a want of notice in probate proceedings after the court has acquired jurisdiction of the estate, Mr. Justice Field says:
“It is apparent from these sections that the publication of notice of the hearing is only intended for the protection of parties having adversary interests in the property, and is not essential to the jurisdiction of the court.” (Italics ours.)
For other similar cases relating to probate proceedings, and where like expressions are used, see, McPherson v. Conliff, 11 Serg. & R. (Pa.) 422, 14 Am. Dec. 642; Garrett v. Boeing, 68 Fed. 51, 15 C. C. A. 209; Tilton v. Cofield, 93 U. S. 163, 23 L. Ed. 858; Ladd v. Weiskopf, 62 Minn. 29, 64 N. W. 101, 69 L. R. A. 785; Clark v. Rosier, 10 Idaho 348, 78 Pac. 358.
The only question, therefore, is: Did the district court of Salt Lake County, while acting as probate court, have jurisdiction of the property of the deceased and of the parties interested therein? While the probate proceedings, in their nature, are procedings in rem, it does not follow that no notice of any kind to the interested parties is necessary in order to bind them. If the court, however, has once acquired jurisdiction of the property and of the parties by the giving of the statutory notice, it is not easy to perceive how a judgment or decree affecting either or both is col
As we have seen, the statute requires that the names, ages, and places of residence of the heirs must be given in the petition for the appointment of an administrator. It seems
In this connection, it is a matter worthy of note that, while notices for various other hearings were expressly pro
In addition to the Wisconsin case, it may be said that the case of Shriver v. Reister, 65 Md. 278, 4 Atl. 679, holds that the notice of the application for distribution is jurisdictional. But this case is also based upon a Maryland statute. Mr. Van Fleet, in his work on Collateral Attack, refers to the Wisconsin and Maryland cases in section 403 of his work. While it is apparent that he does not agree with those courts, nor with the views entertained by them with respect to the effect of such a notice, yet all he says with respect to them is: “The distributees were in court all the time. They had an opportunity to rectify any errors when he came to obtain his final discharge.” It will thus be seen that Mr. Van Fleet holds to the general doctrine that the notice for the appointment of an administrator or executor brings not only the property, but all the parties in interest, into court for all the purposes of administrating upon the estate in which the application and appointment were made. While we have carefully examined all the cases cited by counsel for appellant, it would subserve no useful
It is further contended, as we understand appellant, fhat no one except the persons named in the decree could have appealed from it. He asserts that, if this be not conceded, an appeal would, nevertheless, have been of no avail, since the record would not have disclosed that any one else had any interest except those mentioned in the decree. The contention, in our' judgment, is not tenable.
It is, however, urged that a title may he good , and still not be marketable. This, no doubt, is true. It may be that there is an apparent outstanding interest in some unknown heir, who, if alive, would' be entitled to claim such interest. Several questions might thus arise, namely: Is the unknown heir alive? If not, did he survive the ancestor, and, if he did not, are there any of his heirs who succeed to his rights ? It may also be the case that, if it were conceded that an unknown heir may still survive, yet that his interest is barred by an adverse possession. There are numerous cases in the books where such questions are discussed.
The case of Ferry v. Sampson, 112 N. Y. 415, 20 N. E. 387, is a case where there was an apparent outstanding in
In another case, decided by tbe same court a year later (Vought v. Williams, 120 N. Y. 253, 24 N. E. 195, 8 L. R. A. 591, 17 Am. St. Rep. 634), and cited by counsel for appellant, an opposite result was reached. Tbe result in tbe latter case, however, was based upon tbe fact that the unknown beir bad not been unheard of for a sufficient period of time to constitute a presumption sufficiently strong to remove tbe doubt that be might return and ■ claim his' interest.
Another illustration of this character is presented by tbe case of Swayne v. Lyon, 67 Pa. 436, also cited' by appellant. In that case tbe title was based upon a judgment which was beld to be open to collateral attack by a party who bad some right to or interest in the land in question. Tbe court therefore beld tbe title so doubtful as to make it unmarketable. ’
Another illustration is found in tbe case of Hedderly v. Johnson, 42 Minn. 443, 44 N. W. 527, 18 Am. St. Rep. 521. That case involved the construction of an instrument from which it was to be determined whether an easement could or could not successfully be claimed in tbe property which was tbe subject of sale. Tbe vendee claimed that, since it was possible that an easement could be claimed in tbe property, therefore tbe title was not marketable. Tbe court, however, beld that whether an easement could be claimed or not depended upon certain facts which were so clearly established as toi leave no reasonable doubt that an easement could not be successfully claimed in the property, and hence tbe title was beld marketable, and tbe vendee was required to receive it.
It will thus be seen that, even though the title depends upon a question of fact, if the fact upon which the title rests is clearly established, or is undisputed, so as to leave no room for reasonable doubt with regard to the
If we apply the doctrine to be deduced from the authorities to this case, how.can it be said that the title to the land in question is, or ever was, doubtful so as to be unmarketable within the meaning of that term?
From what has been said, it follows that the district court committed no error in holding that the title in question is a marketable title, and hence that the respondent committed no breach of his agreement to convey a marketable title in view that he conveyed all that he had agreed to convey.
The judgment is .therefore affirmed, with costs to respondent.
Dissenting Opinion
I dissent. On the 17th day of October, 1908, the defendant and respondent sold and conveyed to the plaintiff and appellant certain real estate situate in Salt Lake City. It is alleged in the complaint:' That at the time of the sale
I think it is well settled that title to real estate may be good, and yet may not be marketable. . It it is not necessary to show that the title is bad to establish that it is not marketable. The court may consider and hold the title good, and yet hold it not marketable, if there be sufficient doubt and uncertainty in respect of the title to form the basis of litigation, or if it invites and exposes the party holding the title to litigation. The purchaser is entitled to have a title that will enable him to hold his land in peace, and, if he wishes to sell it, to be reasonably sure that no flaw or doubt will arise to disturb its market value. And if there be doubt it cannot be thrown upon the purchaser to contest that doubt and encounter the hazards of litigation. If it were otherwise, the purchaser could be compelled to buy a lawsuit, which might be a very serious loss to him both of time and money, even if he ultimately succeeded. These principles are found stated in, and are taken from, the following cases: Vought v. Williams, 120 N. Y. 253, 24 N. E. 195, 8 L. R. A. 591, 17 Am. St. Rep. 634; Herman v. Somers, 158 Pa. 424, 21 Atl. 1050, 38 Am. St. Rep. 851; Townshend v. Goodfellow, 40 Minn. 312, 41 N. W. 1056, 3 L. R. A. 139, 12 Am. St. Rep. 136; Swayne v. Lyon, 61 Pa. 436; Turner v. McDonald, 16 Cal. 119, 18 Pac. 262, 9 Am. St. Rep. 189.
When the Toronto estate was distributed, without notice, to certain persons claiming to be the heirs of the deceased, I think sufficient doubt and uncertainty as to the title arose to render it not marketable, though this court should afterward entertain the opinion in favor of the title, and should decide that the probate court was not without jurisdiction to make the distribution without notice. I do not think that the question is so clear and free from doubt that such an.
In the next place, I am not satisfied with the conclusion reached by the other members of the court that when a court in á probate proceeding has appointed an administrator, upon proper notice, it thereby obtained jurisdiction of subject-matter, and all the parties interested in the estate, for all subsequent proceedings in the course of administration, including a settlement and distribution of the estate, and that whatever action the court thereafter took, or whatever proceedings were thereafter had, ‘ though in violation of the prescribed procedure, and of the giving of notice as required by the statute, constituted but irregularities, and did not affect jurisdiction..
I do not think that the adjudged cases go to the extent of holding that, when a proper notice has been given for the appointment of an administrator, the court acquired not only jurisdiction to make the appointment, .but also acquired jurisdiction, after the appointment, to do all other things in the course of administration, including the distribution of the estate, notwithstanding, to do them, a notice was also required to be given as prescribed by the statute, and that such notice was not given. Neither do I think tha,t section 3179 of the statute is open to such a construction. The first portion of the section provides that no order or decree affecting the title to real property made in any probate matter shall be held void at the suit or instance of any person claiming adversely to' the title of the decedent, or under a title not derived from or through the decedent, on account
When a distribution is made, as was the case in the Toronto estate, on the same day of the filing and presentation of the petition for distribution, and without notice, I do not see how any one interested in the distribution or entitled to a distributive share of the estate, and who had
It, however, is said that the plaintiff neither alleged nor proved that the deceased left legal heirs who were entitled to a distributive share, other than those who petitioned for distribution, waiving notice, and to whom the property was distributed. That implies that if the plaintiff had shown
When the proceeding, as here, is a special statutory one, and not in accordance with the course of the common law, the jurisdiction of the court, though a court of general jurisdiction, must affirmatively appear upon the record, and no presumption will be indulged in support of its decree or judgment when such jurisdiction does not thus affirmatively appear. If the jurisdiction of the court is thus made to appear, then the judgment rendered, though erroneous, would be a shield to ward off any claim which an heir or his assigns or representatives might assert to the property in the hands of the plaintiff. But suppose a person who is an heir, and entitled to a distributive share, but who had not joined 'in the petition for distribution, asserts a claim to his distributive share of the property in the hands of the plaintiff, would the decree or judgment rendered by the court distributing all the property to others, without notice of any kind, be a shield in the hands of the plaintiff against such a ■claim ? If it would, then why would not a judgment of settlement and distribution of an estate also be a shield to a ■creditor’s claim asserted against the property in the hands ■of a distributee or his assigns where the settlement and distribution were had without publishing or giving notice to •creditors? I do not think it would in either instance. If in a case a settlement and distribution were had without notice to creditors, and the title of a distributee was questioned or assailed for the want of such a notice, it could as well be asserted that to make the assault successful it must
But, aside from these considerations, the title depending upon a decree of distribution rendered on proceedings without notice was, I think, sufficiently doubtful and uncertain as to expose the plaintiff to the hazards of litigation, and' thereby render the title not marketable, until the court of last resort, in a proper proceeding before it, has finally determined and adjudicated that a court in probate proceedings has jurisdiction to render a decree of distribution without notice. Suppose this court, in this proceeding between the plaintiff and the defendant, should now adjudge the title good and marketable, of what avail is the adjudication in the hands of the plaintiff in a case where an heir entitled to a distributive share, and who- had not joined in the petition for distribution waiving notice, asserted a claim against the property in the hands of the plaintiff ?
I think, from the terms of the written agreement entered into between the plaintiff and' the defendant, it may be fairly presumed that the parties themselves thought that sufficient doubt and uncertainty existed with respect to the title by reason of the distribution without notice as to require some action or proceeding to clear up the title, and that such doubt and uncertainty led to the making of the agreement, by the terms of which the defendant agreed to take such steps or to pay the plaintiff the sum of one hundred and fifty dollars for such purpose. The defendant, upon demand, refused to do either; and, when he so refused, I think a breach of his contract occurred.
I therefore think that upon the issues, and upon the agreed statement of facts, the- plaintiff was entitled to recover, and that the court erred in rendering judgment in favor of the defendant, and in dismissing the complaint.