122 Minn. 1 | Minn. | 1913
Lead Opinion
The administrator of the estate of Edward O. Norton, deceased, sold the land here in controversy under license issued by the probate-court of Koochiching county. The purchaser was George N. Millard. He conveyed to the defendant Paul Kennedy. Plaintiff is one-of the heirs of said Norton and she has acquired the interest of all the’ other heirs. She brings this action to quiet title to the land. This is; accordingly not an appeal from any order of the probate court concerning the sale. It is an independent action. The attack here made-upon the orders of the probate court is a collateral attack.
The probate court is a court of general jurisdiction. In the absence of fraud, its orders and decrees cannot be attacked in a collateral action, except in case of want of jurisdiction of the court to-make them, and then only when the want of jurisdiction appear» ■affirmatively on the face of its record. This is well settled. Davis v. Hudson, 29 Minn. 27, 11 N. W. 136. It is the contention of plaintiff that the sale of this land in the probate proceeding was void; that the court had no jurisdiction to appoint the administrator at all;. and that it had no jurisdiction to order a sale of this land.
The complaint alleged that defendant John A. Kennedy was appointed administrator, and the court so found. In neither the complaint nor the findings is there any suggestion that the appointment, was irregular. In a collateral proceeding, such as this, the letters of' administration issued by the probate court of the county where de
On November 12, 1904, deceased made a homestead entry upon this land. He thereafter commuted his homestead entry to a cash purchase, as he was authorized by law to do. R. S. (U. S.) § 2301.
On April 10, 1906, he made final commutation proof upon said homestead entry and made full payment to the United States for the land. On September 6, 1906, he died. On March 17, 1908, the receipt of receiver of the United States land office was issued in his name. On September 8, 1908, a patent was issued by the United States government in his name. On March 2, 1909, letters of administration were issued.
Although the homestead entry was commuted to a cash purchase, ■'it still retained the incidents of a homestead entry, for the commutation of a homestead claim is the consummation of the homestead right and not an exercise of a pre-emptive one. Cotton v. Struthers, 6 L. D. 288; Ball v. Graham, 6 L. D. 407; Case of James Brittin, 4 L. D. 441; Case of Lipinski, 13 L. D. 439; Clark v. Bayley, 5 Ore. 343.
1 [U. S. Comp. St. 1901, p. 1406].
But after final proof the rule is different: It is a general .rule that: “A person who complies with all the requisites necessary to entitle him to a patent * * * is to be regarded as the equitable owner” of the land. Wirth v. Branson, 98 U. S. 118, 121, 25 L. ed. 86; Robinson v. Caldwell, 67 Fed. 391, 14 C. C. A. 448; United States v. Freyberg, (C. C.) 32 Fed. 195. When the right to a patent has once become vested, it is equivalent, so far as the government is concerned, to a patent actually issued. The execution and delivery of the patent after the right to it is complete are the mere ministerial acts of the officer charged with that duty. Stark v. Starrs, 6 Wall. 402, 18 L. ed. 925; Barney v. Dolph, 97 U. S. 652, 24 L. ed. 1063; Simmons v. Wagner, 101 U. S. 260, 25 L. ed. 910; Camp v. Smith, 2 Minn. 131 (155); St. Paul & S. C. R. Co. v. Ward, 47 Minn. 40, 46, 49 N. W. 401, (homestead case). Hayes v. Carroll, 74 Minn. 134, 137, 76 N. W. 1017, (homestead case).
Such person is not prejudiced by the issuance of a patent to another. Wirth v. Branson, supra; Cornelius v. Kessel, 128 U. S. 456, 9 Sup. Ct. 122, 32 L. ed. 482; Robinson v. Caldwell, supra; United States v. Freyberg, supra. He may sell his interest notwithstanding statutes which prohibit a sale 'before a patent issues. Barney v. Dolph, supra; Simmons v. Wagner, supra; Stark v. Starrs, supra; Case of Eberhard Querbach, 10 L. D. 142, (a homestead case); St. Paul & S. C. R. Co. v. Ward, supra; Sims v. Morrison, 92 Minn. 341, 100 N. W. 88. He may make a valid mortgage thereof. Lewis v. Wetherall, 36 Minn. 386, 31 N. W. 356, 1 Am. St. 674, (home
It naturally follows that it will descend to his heirs according to the laws of the state wherein it is situate; and such is the law. Carroll v. Safford, 3 How. 441, 461, 11 L. ed. 671; Strain v. Hostotlas, 17 L. D. 293 (homestead case); Case of C. P. Cogswell, 3 L. D. 23; County of Polk v. Hunter, supra; Hayes v. Carroll, 74 Minn. 134, 137, 76 N. W. 1017; Rogers v. Clark Iron Co. 104 Minn. 198, 221, 116 N. W. 739. In case of C. P. Cogswell, 3 L. D. 23, 26, supra, it is said: “It is a fact generally known that * * * ¡such title, for the purposes of private and judicial sale, taxation, inheritance of real estate, and all other kindred objects, is treated by the courts, the local legislatures and individuals in the same manner .as if a patent had issued.”
We hold that Edward O. Norton was the equitable owner of this land at the time of his death. It descended according to the laws of this state, and was part of his estate to be administered.
Whether there were facts to warrant a sale in any given case was-a question which the probate court was obliged to determine, and which that court and no other had jurisdiction to determine. This question was considered by the probate court and was determined adversely to plaintiff. Then was the time for the plaintiff to present her contention in court. No fraud or artifice was practised to prevent her doing so. In fact, in her brief, she claims that she did in fact appear. If the determination of the probate court was wrong, her remedy was to appeal from that determination. The heirs were entitled to one day in court, but not to two. When a probate court with jurisdiction over property for purposes of administration, and for purposes of sale in certain cases, orders and confirms a sale of the same, it is the right and duty of an heir to litigate the propriety of such orders in that proceeding. The heir cannot sit by, permit the sale to be made, and then bring another and a collateral action in another court to litigate again the propriety of the sale, and to procure a decree declaring it to be void. Such a practice would place no end to litigation.
The statute relating to sales of real estate by an administrator prescribes five grounds on which such a sale may be collaterally attacked. B. L. 1905, § 3774. To this extent the statute modifies the rule as to the verity of probate court records. There is no claim here that this probate sale is subject to attack on any of the grounds-mentioned in section 3774. To this extent only, the proceedings may be assailed collaterally by virtue of this statute. In all other respects the orders of the probate court in the matter of administrators’ sales are accorded the same presumption as the judgments of courts of superior common law jurisdiction. Kurtz v. St. Paul & Duluth R. Co. 61 Minn. 18, 63 N. W. 1.
The principle involved is the same as in Ordean v. Grannis, 118 Minn. 117, 136 N. W. 575, 1026. In tbat case a judgment in a partition suit was attacked collaterally. It was claimed a sale bad been made in contravention of tbe statute, wbicb provides tbat “no sale shall be made” when tbe liens amount to more than tbe value of tbe property. Justice Bunn [at page 126] said: “It may have been error to decree a sale under tbe facts alleged and proved; but tbe court bad jurisdiction of tbe subject-matter and of tbe parties, and tbe error in ordering a sale was at most an error tbat might have been taken advantage of on appeal. Tbe court bad jurisdiction to order a sale in a proper case. If tbe pleadings or proof showed tbat it was improper to do so, it was error; but tbe order was not in excess of tbe court’s jurisdiction and not void.”
This question has arisen in other jurisdictions and tbe decisions have been in accordance with tbe views here expressed. J. B. Watkins v. Mullen, 62 Kan. 1, 61 Pac. 385, 84 Am. St. 374; Gjerstadengen v. G. W. Van Duzen & Co. 7 N. D. 612, 76 N. W. 233, 66 Am. St. 679. See also Sigmond v. Bebber, 104 Iowa, 431, 73 N. W. 1027. In tbe Kansas case tbe court said, (page 4) “Upon principle, however, we are fully persuaded tbat such judgment can only be reviewed upon appeal or other direct proceeding, and not in a collateral action.” In North Dakota tbe same question was considered. Tbe following language of tbe court is apropos here:
“Tbe Federal statute exempting Federal homesteads from liability for debts contracted before tbe issue of patent (section 2296 B. S. [U. S.]) does not take such homestead, after it has once become-tbe property of tbe homesteader, out of the jurisdiction of tbe probate court. * * * Tbe probate court in tbe supposed case has. full jurisdiction over tbe property, because it forms part of tbe decedent’s estate. Whether it shall be sold for certain debts is a judicial question, to be decided by tbe court, tbe same as any other question tbat arises in tbe course of tbe proceedings over wbicb it*9 clearly has jurisdiction. All persons who claim under the decedent, whether as heirs or as devisees, are parties to the proceedings; and they must therein assert the exemption of the land from liability to sale, if they intend to invoke the protection of the law at all. The' question before the court is whether that particular land of the decedent shall be sold for debts, and all parties interested must then and there interpose any defense to a sale thereof which they may have, whether it relate to the existence of the alleged debts at all, or, conceding the claims to be valid, asserts that for such debts the land cannot be sold, because of the exemption thereof under the Federal statute.”
The orders of the probate court of Koochiching county were within its jurisdiction and were not void.
The judgment appealed from is reversed.
[U. S. Comp. St. 1901, p. 1390].
[U. S. Comp. St. 1901, p. 1398].
Concurrence Opinion
(concurring).
I concur in the foregoing opinion in all respects, save the conclusion that the land in question belonged to and was a part of the estate of decedent at the time it was ordered sold in the probate proceedings. From the conclusion of the court upon that question, I respectfully dissent. The probate proceedings were commenced after the issuance of the patent and when, under section 2448, K. S. (U. S.)
“Where patents for public lands have been or may be issued, in pursuance of any law of the United States, to a person who had died, or who hereafter dies, before the date of such patent, the title to the land designated therein shall inure to and become vested in the heirs, devisees or assignees of such deceased patentee as if the patent had issued to the deceased person during life.”
As I understand this statute the title to the land upon the issuance of the patent, though issued in the name of decedent, passed directly to his heirs, was no part of his estate and the probate court, was without jurisdiction to order it sold. It is probable that, had
[U. S. Comp. St. 1901, p. 1512].