181 F. 795 | 8th Cir. | 1910
Susan I. Childs and Harriet M. Childs, daughters of Charles Childs, the mortgagor, and the defendant in a suit to foreclose certain mortgages upon real estate which he made, challenge the validity of an order made in that suit, after notice to them and a hearing, for-the issue of- a writ of assistance to place the ádministrátor .of the estate of Everard D. Eerguson, the purchaser at the foreclosure sale, in possession of the homestead, which they occupied with their father before his death and under his title since his decease, on the ground that he died before the decree of foreclosure was filed or entered, and before the sale thereunder was made, and the suit has never been revived.
Charles Childs, the mortgagor, was served with a summons, appeared and answered the bill, proof was made, the case was finally heard, and on October 24, 1902, the court decided it and ordered a decree for the complainant. On January 15, 1903, the decree thus ordered was signed, filed, and entered of record, and it contained an order that it should be “entered and spread on the records nunc pro tunc as of the date this cause was decided and decree for complainant ordered, to wit, October 24, 1902.” Meanwhile the defendant Charles Childs had died oh January 4,1903, and counsel for the appellants contend (1) that his death abated the suit and rendered the decree futile; and (2) that it caused the order of sale and all proceedings under it to be absolutely void and open to collateral attack. The questions thus raised arise in,a field where both the constitutional laws of a state which govern'the descent, alienation, and transfer of land within its borders and constitute rules of real property, and the rules of practice of the federal courts in equity, may apply, and it is a well-established rule that, when such rules of practice in equity conflict with the constitutional laws of the state in force when the contracts regarding the land were made, the latter prevail, because they become a part of the contracts between the parties. Bronson v. Kinzie, 1 How. 311, 11 L. Ed. 143; Brine v. Hartford Fire Ins. Co., 96 U. S. 627, 634, 24 L. Ed. 858. But, when there is no conflict between them, the laws of the state and the rules of practice of the courts are alike enforced.
There is no rule of the Supreme Court or of the Circuit Court which specifically answers the question that the appellants present, and rule 90 in equity declares that in such cases the practice of the national courts in equity shall be regulated by the practice of the High Court of Chancery in England in 1842, when that rule was adopted. It was the general rule under the English chancery practice in 1842, as it is now in the federal courts in equity, that the death of a sole defendant, which transferred -his interest to others, abated- the suit in the absence of a revival, and rendered void all subsequent proceedings to affect that interest. Mitford’s Pleadings (6th Am. Ed.) 69; Story’s Equity Pleadings, § 354; Foster’s Federal Practice (3d Ed.) § 174. There
Their counsel argue, however, that under the practice in chancery in England and under that of the federal courts a revivor is necessary where a sole defendant whose rights are affected by the decree dies and his interests pass to another after the decree and before its execution, and that this is also the rule established by the decisions of the Supreme Court of Nebraska; and they cite Street v. Smith, 75 Neb. 434, 436, 106 N. W. 472, and Keith v. Bruder, 77 Neb. 215, 109 N. W. 172. But these are cases in which the question arose under a direct attack upon the proceedings subsequent to the death. In the case at bar the sale under the decree was made and confirmed without a revivor. No appeal was taken from the order of confirmation of the sale, no motion or petition to avoid it was made, and it is not now directly, but is collaterally, assailed. In McCormick v. Paddock, 20 Neb. 486, 488, 489, 30 N. W. 602, the Supreme Court of that state held that an order of confirmation of a sale under a decree made after the death of a party whose interest in the subject-matter passed to another by her death, and the decree itself, were voidable, but not void, and that they were impervious to collateral attack, although there had been no revivor; and it cited in support of this conclusion its prior decision to a like effect, in Jennings v. Simpson, 13 Neb. 558, 565, 11 N. W. 880. In the year 1894, in the case of Harter v. Twohig, 158 U. S. 448, 454, 15 Sup. Ct. 883, 39 L. Ed. 1049, the Supreme Court of the United States cited these cases and declared that this was the settled law in Nebraska. The mortgages foreclosed under the decree in this suit were made between 1890 and 1896, and this, the settled 'law of Nebraska at that time, became a part of the contracts between the parties under the decisions of the Supreme Court in Bronson v. Kinzie, 1 How. 311, 11 L. Ed. 143, and Brine v. Hartford Fire Ins. Co., 96 U. S. 627, 634, 24 L. Ed. 858, and the other cases there cited, and rendered the decree, the sale, and the confirmation impervious to collateral attack.
Nor is this rule of property unjust or unreasonable. When a mortgagor dies after he has appeared, answered, presented his evidence and arguments, and the court has decided his case and ordered a sale of the mortgaged property to satisfy the liens the mortgages evidence, those who acquire his property by his death take it subject to that decision and to those liens. If the mortgagor conveys his title and interest, it is unnecessary to make his grantee a party to the suit, or to notify him of the decree or the subsequent proceedings to apply the land to the payment of the liens; and why should one to whom the title passes by descent without consideration have greater rights than one to whom it goes by purchase? It is said that the decree in this case provides for a judgment for a deficiency after the sale, and that such a judgment cannot be rendered without notice to the parties to be charged thereby. Conceding, without deciding, that this position may be tenable, and that such a judgment would be beyond the jurisdiction of the court, it does not follow that the sale of the real estate to satisfy the lien upon it, which was adjudicated by the decision of the court, is not within that jurisdiction; and, although decisions upon the latter question are conflicting (Seeley v. Johnson; 61 Kan. 337, 341, 59 Pac. 631, 78 Am. St. Rep. 314; Halsey v. Van Vliet, 27 Kan. 474, 482), there is very respectable authority to the effect that the proceedings for such sales are far within the jurisdiction of the court and are valid (Whiting v. United States Bank, 38 U. S. 6, 12, 13, 14, 15, 10 L. Ed. 33; Harrison v. Simons, 3 Edw. Ch. [N. Y.] 394; Hays v. Thomae, 56 N. Y. 521, 522; Smith v. Joyce, 14 Daly [N. Y.] 73, 75; Wing v. De La Rionda [City Ct. Brook.] 5 N. Y. Supp. 550; Id., 125 N. Y. 678, 680, 25 N. E. 1064).
Because it was the settled law of the state of Nebraska, and a rule of property in that state when the mortgages in suit were made, that sales of mortgaged lands and their confirmations after the death of the mortgagors defendants under decrees ordered against them before their decease were voidable, but were not void, and were not open to-collateral attack, the sale of the land here in question and the confirmation thereof were impervious to the assault of the appellants on the application for the writ of assistance, and there was no error in its issue,
The order below is' accordingly affirmed.
