Howe v. Kern

125 P. 834 | Or. | 1912

Lead Opinion

Opinion by

Mr. Chief Justice Eakin.

1. When defendant Kern was called upon by the executrix to 'execute the mortgage to secure the $2,000, deferred payment of the purchase price of the 5%-acre tract, he refused to do so, and she brought suit against him to compel specific performance. That suit raised only the question as to the liability of Kern upon his contract of purchase. His defense was that plaintiff could not give him a good title because the petition for the sale was insufficient to authorize an order of sale. He asks to have the minor made a party defendant in that suit, and an order to that effect was made by the court, but an amended complaint, accomplishing that result, was not filed. However, a summons was served on the minor, and, on motion of Kern, Stephan was appointed guardian ad litem for him in that suit. Kern being willing to complete the purchase and not satisfied that a decree against him in that suit would quiet his title, he filed what he terms a cross-bill, not against the plaintiff or for relief as to any matter involved therein, but to quiet title against the minor.

2. Upon the cross-bill no summons was issued and no service of the complaint was had on the minor, nor was there a guardian ad litem appointed for him, but service of the complaint was accepted by the guardian in the suit for specific performance, and he filed an answer therein. The guardian ad litem was selected by the executrix, and he did not investigate the minor’s rights, but acted upon the advice of Mrs. Howe, and her attorney, who, it seems, drew his answer, yet her interests in the proceeding were adverse to that of the' minor, as it would result in taking his property to pay debts chargeable upon the property devised to her. See Bowman v. Anderson, 62 Or. 431 (123 Pac. 1092). However, by Section 390, L. O. L., cross-bills are abolished except for the purpose of asserting an equitable defense in an action at law; but any defense that a defendant may have against the plaintiff in a suit may .be pleaded as a counterclaim under Section 401, L. O. L., if it be connected with the subject of the suit. Although the minor was made a party defendant in the suit for specific performance, he was in no way interested in the result. Therefore the circuit court had no jurisdiction in that suit to quiet the title as against the minor, and, so far as it attempted to do so, the decree was void, for the reason that the relief sought by the cross-bill was not a counterclaim against the plaintiff in the suit for specific performance, within Section 401, L. O. L., and for the further reason that the minor, against whom the relief was sought, was not brought into court by service of summons.

The plaintiff in this suit, assuming that the petition for the sale of the real estate in the probate proceeding was wholly insufficient to give the court jurisdiction to order the sale, alleges that the answer and cross-bill in the suit for specific performance and the proceedings thereunder were had by collusion and fraud between the executrix and Kern for the purpose of barring and cutting off any claim to the property by the minor; and the defendants, plead the proceeding under such answer and cross-bill as an adjudication of the title in their favor, and that they are innocent purchasers for a valuable consideration without notice of any collusion or fraud.

Without considering the question of collusion or frauci on the part of Kern and the executrix, we conclude that the decree in the suit for specific performance did not bar or estop the plaintiff from claiming title to the property, and this brings us to the consideration of the question of the sufficiency of the petition for the sale of the real estate and the validity of the order.

3. The first question of importance is as to the relation that the fourth item of the will — the devise of the 5 34-acre tract — bears to the other devise. This is a specific devise to Carrie Howe and the infant. By Section 1252, L. O. L., when real estate is specially devised, it shall be exempt from the - operation of the order of sale for the purpose of paying debts in the same manner as personal property; and by Section 1251 personal property, specially bequeathed, is exempt from the operation of the order of sale so long as any property not specially devised or bequeathed remains unsold. The wife’s interest in the property devised by both items 3 and 4 is made contingent upon her remaining with the testator while he lives and remaining unmarried thereafter. In case of desertion or remarriage all the property is to go to the infant. Plaintiff has overlooked the fact that item 3 of the will is also a special devise of the property described and is exempt from the order of sale until property, not specially devised or bequeathed, has been exhausted. By the terms of item 3, the devise to Carrie Howe is charged with the support of herself ánd the education and maintenance of the child; and the property devised by item 4 cannot be sold to meet such expenses until the other property is exhausted. '

4. The debts of the estate secured by mortgage must first be satisfied out of the mortgaged property. This is recognized by Section 1271, L. O. L., which provides for the payment of mortgage debts out of the personal property only when so provided in the will or by order of the court, and by Section 1272, L. O. L., if no such provision is made, the property shall be sold subject to the mortgage. The property devised by item 4 is equally liable with that devised by item 3 for the funeral expenses, debts of the estate, and expenses of administration, and either may be resorted to for the payment of such claims or liabilities; and if, in the course of the probate proceeding, either devise has contributed to such liability more than its share, the devisee is entitled to contribution therefor. Jarman, Wills, p. 2031.

5. But the property devised by item 4, having been ordered to be sold for debts for which it was liable, the fact that more property was included in such order than was necessary to pay such debts, or that a part of the proceeds of such sale was applied to claims for which it was not liable, cannot render the sale invalid.

6. The complaint in this suit alleges that the petition for the sale of real property was insufficient to give the court jurisdiction.

“That the said petition for the sale of real property was insufficient and did not contain the jurisdictional facts to give the court jurisdiction to base an order thereon directing the sale of the said minor’s interest in and to the said tract of 5% acres especially devised to him by said will. That said petition failed to allege or show any necessity for the sale of said property, but, on the contrary, showed that there was no necessity to sell said property. That said petition failed to show that there were any claims for the payment of which said property could be subjected under the terms of the will as above alleged, and said petition failed to set out said will or to petition for the sale of the said property, but the said petition asked only for an order of the court permitting the executrix to sell such portions of said real property belonging to said estate as she might deem necessary from time to time in order that she might sell such part or parts without any order of the court therefor and without any determination by the court that the necessity existed for the sale of said part or parts of said property.”

No facts are alleged, stating in what regard the petition failed to establish a necessity for the sale of the property, or that there were any claims for the payment of which such property could be subjected. If by this allegation plaintiff means that there was no' necessity shown for the sale of this tract, it being specially devised, that objection is fully answered by what has been already stated; there being funeral expenses, expenses of administration, and taxes for which this property was liable.

The final account shows that there was actually more than $1,650 of liabilities for which it was liable, and no property, not specially devised, was applicable to the payment thereof. Therefore the petition shows a necessity for the sale. The inventory and appraisement show there was personal property of the value of $1.00, practically no personal property. However, the petition recites that the personal property was sold for $1.00, and it enumerates the debts and expenses of administration and _faxes amounting to $506.53, and for the payment of which this property was liable equally with the other.

7. It is also urged that the petition is defective because it does not set out the will; but, the will having been probated, the court will take notice of its contents.

8. The petitioner asks for an order permitting her to sell any part of the property of the estate for which she may be able to find a purchaser. Probably she asked for too -much, but the prayer does not affect the jurisdiction. The order of sale does not grant all that is prayed for, but authorizes the sale of blocks 3 and 4, and lots 23 and 24 of block 7, in Wheatland Addition to East Portland, and the 5%.-acre tract or so much thereof as may be necessary to realize the amount of money sufficient to pay the claims, charges, and expenses of administration. Such latitude to the executrix was probably ill advised, but does not affect the jurisdiction to make the order or the title of the property sold thereunder. It being necessary that some of the real estate be sold to pay this indebtedness, and all the real property having been disposed of by special devises, the property under each devise is liable equally for the payment thereof, and the petition is not subject to the criticism offered, but was sufficient to give the court jurisdiction to make the order of sale.

The sale of more of the property than was necessary to pay the debts for which it was liable, and the payment of a part of the proceeds of the sale upon debts chargeable to other property, are matters of procedure that do not go to the jurisdiction of the county court to make the order for the sale of property, and these defects are aided by the curative statute. Section 1259, L. O. L.

The decree is affirmed. Affirmed.

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Rehearing

Decided December 31, 1912.

On Petition for Rehearing.

(128 Pac. 818.)

Mr. Justice Burnett

delivered the opinion of the court.

The substance of the contention for the plaintiff is that the county court, in ordering the sale of the premises in question, acted without having acquired jurisdiction. It is disclosed by the record that, when the petition for the order of sale was filed, the estate consisted of the following items of real property constituting its only assets: Seventy-two lots in Howe’s Addition to Portland; 2 lots in Wheatland Addition to Portland; and 5% acres of un-platted land adjoining Howe’s Addition. Different portions of the property in Howe’s Addition were subject to the lien of three several mortgages, leaving only blocks 3 and 4 in that addition unincumbered. The 5% acres and the two lots in Wheatland Addition were clear of liens of any kind.

9. The argument of the plaintiff is that the county court had no authority to direct the sale of his interest in the acreage realty for the payment of debts and expenses of administration because that property was specifically devised to him and hence could not be used for that purpose until all other assets of the estate were-exhausted. The reason fails, however, when we consult the will and learn from it that in one way or another the testator specifically devised all the land of which he died seised. The Howe Addition property was devised to the mother in the main to dispose of for the maintenance of herself and her son and for the education of the latter; the two lots in Wheatland Addition went to her in severalty, and the acreage fell to her and her son as tenants in common. All of these are specific devises and, taken together, cover all the property of the testator so that the limitation of specific devises preventing the application of such property to the discharge of the indebtedness and administration expenses in the first instance, is set at large and has no application here. The will does not give any of the devises preference- over another. They are all of equal rank. Each of them, without reference, to the others, was subject to such debts and expenses as were properly chargeable against it. With this condition of the assets of the estate in mind, it remains to examine the petition for the order of sale and determine whether it stated facts sufficient to have given the county court jurisdiction to order a sale of the real property in dispute. We omit from Sections 1252 and 1253, L. O. L., the amendments, immaterial here, providing for the sale of real property in certain cases before the disposition of personalty, Laws 1905, p. 233, and quote those sections as they stood at the time of the transactions under consideration :

“Section 1252. When the proceeds of the sale of personal property have been exhausted and the charges, expenses and claims specified in Section 1249 have not all been satisfied, the executor or administrator shall sell the real property of the estate or so much thereof as may be necessary for that purpose. If any of such real property have been specially devised, it shall be exempt from the operation of the order of sale in the same manner as personal property specially bequeathed.”

10. “Section 1253. The petition for the order of sale of real property shall state the amount of sales of personal property, the charges, expenses and claims still unsatisfied, so far as the same can be ascertained, a description of the real property of the estate, the condition and probable value of the different portions or lots thereof, the amount and nature of any liens thereon, the names, ages and residence of the devisees, if any, and of the heirs of the deceased, so far as known.” Sections 1172, 1173, B. & C. Comp.

The demands against the estate specified in Section 1249, L. O. L., are “funeral charges, expenses of administration and the claims, if any, against the estate.” Section 1254, L. O. L., requires that —

“Upon the filing of the petition a citation shall issue to the devisees and heirs therein mentioned, and to all others unknown, if any such there be, to appear at a term of court therein mentioned, not less than ten days after the service of such citation, to show cause, if any exist, why an order of sale should not be made as in the petition prayed for.”

In Section 1255, L. 0. L., the rule is made that,, “upon an heir or devisee, known and resident within this State, such citation shall be served and returned as a summons.”

Acting under these statutory provisions, the executrix who is at once the widow of the testator and the mother of his son, James Gladstone Howe, the plaintiff here, filed in the county court her petition for the sale of real property of the estate. That document recites her representative capacity; that the only personal property of the decedent which came to her knowledge, having been inventoried, was appraised as of no value; and that in pursuance of an order of the county court she had sold it to a person named for one dollar. Then follows this allegation :

“That the following is a statement of the charges, expenses and claims still unsatisfied against said estate so far as known and so far as the same can be ascertained, to wit: Claim of Edward Holman Undertaking Company for funeral expenses of decedent, $227.50; clerk’s fees to date, $10.75; advertising expenses, $2.50; attorney’s fees to date, $50.00; claim of Pacific Coast Abstract Company, $10.00; delinquent taxes for the year 1898, $89.25; and the mortgage indebtedness, amounting to $1,300, hereinafter described in the statement of liens on the real property of said estate.”

The real property of the estate is described in the petition with particularity either by lots and blocks or metes and bounds.. The condition of each parcel as to improvements, cultivation, and value is clearly stated, together with the amount and nature of the liens; the mortgages' hereinbefore mentioned and the tracts affected by each being particularly described. The petition avers:

“That the names, ages, and residences of the devisees of said James Howe are as follows: Carrie Howe, your petitioner, the widow of said decedent, aged 40 years; James Gladstone Howe, the son of said James Howe, aged 5 years, and W. L. Wheatly, aged 26 years, all residing at Portland, Multnomah County, Oregon. That the only heirs of the said James Howe are the above Carrie Howe and James Gladstone Howe.”

The petition narrates ineffectual attempts of the testator in his lifetime to make sale of the realty and avers the belief of the petitioner that the property would command better prices if offered at private sale for part cash and the remainder in deferred interest-bearing payments. The petition concludes with the averment:

“That your petitioner is without means to support herself or her son, the said James Gladstone Howe; that it is necessary to sell a portion of the said property to provide for the payment of the funeral expenses of said decedent, expenses of administration, and debts of the decedent, and for support of petitioner and her son, the said James Gladstone Howe, and it is for the best interest of said estate that she be permitted to sell all or any part of the above-described real property of said estate at private sale, for the reason that the said petitioner cannot at this time, nor can any one, tell what part of the real property may be sold to- the best advantage of said estate and, by obtaining leave to sell at private sale any part of said real property of said estate, one proceeding only becomes sufficient to provide for all the needs of said estate and the cost and expense of further proceedings are thus saved.”

No pretense is made but what citation in due form of law was regularly issued out of the county court and served as a summons upon the plaintiff in pursuance of this petition; that, so far as it depended upon the regularity of the issuance and service of this process of court, a guardian ad litem for the plaintiff here was properly appointed by the county court; and that the guardian so appointed answered for the minor, James Gladstone Howe, assenting to the sale as prayed for in the petition. The whole attack of the plaintiff here is grounded on the alleged insufficiency of the petition. In our judgment, however, the petition in point of allegation fully meets all the requisites of such a pleading as laid down in Section 1253, L. O. L. It was sufficient to give tne county court jurisdiction of the subject-matter. Speaking in general terms, it disclosed that there were claims and' charges against the estate involving not only particular parcels of land under mortgages, but also the entire holdings of the estate under general charges for funeral expenses, taxes, and the like; that the proceeds of the sale of personal property, only one dollar, was not adequate to discharge the obligations of the estate. The served citation gave the court jurisdiction of the persons of those interested in the realty, among whom was the plaintiff here.

11. Having jurisdiction of the persons, the subject-matter, and the thing involved, the county court was in a position to make an order of some kind for the sale of some of the landed property of the estate. Thus equipped, the county court with all propriety could have made an order of sale superior to all the criticisms urged by plaintiff against the order actually entered of record. It had a right to decide, although it may have decided wrongly. In the words of Mr. Justice Lord in Nicklin v. Hobin, 13 Or. 406 (10 Pac. 835): “The question of whether a judgment is right or wrong is a very different one from whether it is valid or void. Although it is the aim of courts to decide rightly, yet the power to decide necessarily carries with it the power to decide wrong as well as right; and, where a court has jurisdiction, the judgment or determination is binding and obligatory until reversed without reference to the question of whether it is right or wrong.” Alexander v. Gill, 130 Ind. 485 (30 N. E. 525) ; Crabill v. Crabill, 22 Or. 588 (30 Pac. 320) ; Altman v. School District, 35 Or. 85 (56 Pac. 291: 76 Am. St. Rep. 468) ; McFarlane v. Cornelius, 43 Or. 513 (73 Pac. 325).

All the questions raised by plaintiff could have and should have been raised in answer to the citation or on appeal to the circuit court, or in other ways in the proceeding itself, or by some direct attack upon the resulting decision of the county court; but they avail him nothing when he assails the order of sale in this collateral litigation.

It is not necessary for us to decide whether or not the order of sale was improvidently made or extravagantly executed to the waste of the plaintiff’s patrimony. All we determine is that, on the face of the record as discussed before us, the county court had jurisdiction of the subject-matter and all of the persons interested, and being unfettered as to specific devises, because all the land was in one way or the other so devised, that tribunal had the power to decide rightly or wrongly, in either of which cases its decree is immune from this collateral attack.

We reiterate our former decision.

Affirmed : Rehearing Denied.