202 P. 769 | Mont. | 1921
delivered the opinion of the court.
In January, 1895, Hannah D. Lamont died intestate in Fergus county, leaving as her heirs at law, W. H. Lamont, her husband, and Charles A. and Harry W. Lamont, her sons, the latter then less than four years old. W. H. Lamont was appointed administrator of the estate, and qualified and entered upon the discharge of his duties. The inventory returned disclosed that the property left by the deceased consisted of 1,550 sheep, subject to a chattel mortgage, and 238 acres of land (particularly described), of the appraised value of $600. Claims were presented and allowed, which, with the costs and charges of administration, amounted to more than $700. The chattel mortgage upon the sheep was foreclosed, and the entire proceeds of the sale were applied in satisfaction of the debt secured by the mortgage.
On March 31, 1898, the administrator presented a petition for the sale of the real estate, and on September 7 following an order of sale was made, notice of the sale given, the property sold to Ole G. Vinger for $1,000, an account of the sale returned, notice of a hearing on the return given and on Jan-
1. Appellant insists, first, that the trial court erred in re-
It is conceded that plaintiff did not become of age until August 10, 1912, so that the three-year period mentioned in the statute above had not expired after he reached his majority and before this action was commenced; but it is contended that because the right of action which the administrator had, was barred three years after the sale, the plaintiff’s right of action was barred also. This contention proceeds upon the theory that during the course of administration the administrator alone had the right to prosecute an action for the recovery of the property, or, in other words, that the administrator in virtue of his office was a trustee whose laches were imputable to the beneficiary — plaintiff herein — even though plaintiff was a minor. This theory prevailed under the early California statutes (McLeran v. Benton, 73 Cal. 329, 2 Am. St. Rep. 814, 14 Pac. 879; Meeks v. Olpherts, 100 U. S. 564, 25 L. Ed. 735), and appellant contends that the same rule is in force in that state under the present statutes, identical with our sections 7596 and 7597, Revised Codes, and since our statutes were borrowed from California, we should adopt the same construction. In support of the last contention the case of Dennis v. Bint, 122 Cal. 39, 68 Am. St. Rep. 17, 54 Pac. 378, is cited. On appeal that case was heard first in department, the opinion being prepared by Commissioner Britt. It was heard again
At common law the administrator had no title to, interest in, or right to the possession of the real property of the decedent, and therefore could not maintain an action with respect to it. Whatever authority he has now is derived from the statutes. (2 Schouler on Wills, Executors, and Administrators, 1199, 1603.) By section 4819, Revised Codes, the property, both real and personal, of one who dies intestate, passes to the heirs, subject to the control of the district court and to the possession of the administrator, for the purposes of administration.
Assuming that section 7604, Revised Codes, gives to an administrator the right to maintain an action to recover the possession of real property under circumstances such as are here presented, that right is not exclusive, for section 7502 provides: “The heirs or devisees may themselves, or jointly with the executor or administrator, maintain an action for the possession of the real estate, or for the purpose of quieting
In our judgment, the foregoing provisions are too plain to admit of construction. If the administrator had a right to prosecute an action for the recovery of the property which he had sold, that right was not exclusive. The right of the heir is secured to him in no uncertain terms, and since plaintiff commenced this action within three years after reaching his majority, his cause of action was not barred. (Wren v. Dixon, 40 Nev. 170, Ann. Cas. 1918D, 1064, 161 Pac. 722.)
2. In the proceedings taken to procure an order for the sale
Counsel for appellant concede that there is not any evidence that an order to show cause was ever made or served, except the recital in the order of sale, but they do insist that there is a recital therein that due notice had been given, and that this is sufficient as against a collateral attack. It is the general rule that if the order of sale recites that an order to show cause was made and due proof of service thereof had to the satisfaction of the court, a purchaser need not look beyond the order, and will be protected as against a collateral attack. (Zilmer v. Gerichten, 111 Cal. 73, 43 Pac. 408.) The order herein recites that the petition was filed on March 31, 1898, and then continues: “Said matter coming on regularly to be heard on the thirty-first day of March, 1898, and upon due proof to the satisfaction of the court of service according to law of the notice of said hearing, and all and singular the law and the evidence being by the court understood and duly considered, whereupon, it is ordered,” etc. Standing alone, that language means that the only hearing upon the petition was the one had the very day the petition was filed; therefore it was impossible that an order to show cause could have been
But counsel contend' that, though this be conceded, it does
• (a) The court acquired jurisdiction of the subject matter by the proceedings leading up to and including the petition for sale, and it may be conceded for the purposes of this case that if the matter of procuring an order of sale-of real property belonging to the estate of an intestate is a proceeding strictly in rem, notice is a matter of courtesy and not of necessity, and the failure to give it in this instance was an irregularity only, and did not render the sale void. (Van Fleet on Collateral Attack, sec. 405; 2 Black on Judgments, sec. 794.) In the section just referred to, Van Fleet states that in Alabama, Arkansas, Louisiana, Texas and Washington such a proceeding is held to be one strictly in rem, and probably two or three other states may be included in the same class; but by the overwhelming weight of authority such a proceeding is classed as one quasi in rem. (2 Black on Judgments, sec. 808; 23 Cyc. 1411.) It is a general rule that unless the proceeding is strictly in rem a valid judgment cannot be rendered affecting the rights of third parties unless they are served with process or appear and have an opportunity to be heard. (23 Cyc. 1408.) In California — from which state we borrowed our Probate Practice Act — it is held that the proceeding is quasi in rem, and that the failure to make an order to show cause and to serve it substantially in the manner required by the statute renders the sale void. (Campbell v. Drais, 125 Cal. 253, 57 Pac. 994.) The facts of that case cannot be distinguished from the facts of the case under consideration.
The authority of the probate court to order a sale of realty
It is the general rule that in the absence of waiver, notice
Speaking of statutes identical with ours providing for a verified petition, an order to show cause and service of notice, the California court said: “Since the procedure is one in which there are no adversary parties present at all times in court, it is reasonable to hold, as has always been held, that these acts are essential to the power on the part of the court to order the sale. In that sense the petition and notice are jurisdictional.” (Burris v. Kennedy, 108 Cal. 331, 41 Pac. 458.)
Counsel for appellant insist that this court is committed to the doctrine that a proceeding of this character is one in rem, and in support thereof cite State ex rel. Ruef v. District Court, 34 Mont. 96, 115 Am. St. Rep. 510, 9 Ann. Cas. 418, 6 L. R. A. (n. s.) 617, 85 Pac. 866. The language therein employed must be understood in the light of the fact that we had under consideration the effect of a judgment of a sister state admitting a will to probate. The conclusion reached in that case does not infringe upon the rule that probate proceedings generally are quasi in rem. (2 Black on Judgments, sec. 635; 15 R. C. L. 637.)
Beginning with the early case of Broadwater v. Richards, 4 Mont. 80, 2 Pac. 546, this court held that “Proceedings for the sale of the real estate of an intestate are in the nature of
In Davis’ Estate, 35 Mont. 273, 88 Pac. 957, it was said: “The notice required in probate proceedings serves the purpose of a summons in ordinary actions.” In State ex rel. Shields v. District Court, 24 Mont. 1, 60 Pac. 489, it was held that the presentation of a verified petition and notice to all persons interested were necessary prerequisites to obtain an order to lease real property belonging to an estate.
Expressions may be found in some of our decisions to the effect that probate proceedings are in the nature of proceedings in rem, but it is clear from a consideration of the particular questions decided that it was never intended to hold that a failure to give notice to the heirs or other persons interested in a proceeding of this character is an irregularity only.
This proceeding is not analogous to the one to foreclose a mortgage or lien upon real property. A' mortgage is the voluntary contract of the property owner, while a lien is impressed upon particular property by the law. An allowed claim against an estate or a charge for expenses of administration is not in any sense a lien upon the property belonging to the estate. (Sec. 7536, Rev. Codes.)
It is suggested by counsel for appellant that, even though this plaintiff was not notified of the application to sell, he had an opportunity to oppose confirmation. This may be granted, but it does not mend matters. A party defendant to a civil action, who has not been served with summons, may appear voluntarily and contest the action upon the merits, but he is not required to do so, and he does not waive the question of 'jurisdiction by remaining passive, but may thereafter attack the judgment collaterally.
It is our conclusion that by failing to make an order to show cause and requiring service of notice, the court did not acquire jurisdiction of the person of this plaintiff; that the order of sale was void and open to collateral attack, and, as a matter of course, the sale made pursuant to such order did
It is an elementary rule that in judicial proceedings tbe law of tbe land requires a hearing before condemnation, and judgment before dispossession. (Cooley’s Constitutional Limitations, p. 506.)
(b) Finally, counsel for appellant contend that, inde
The limit to which curative or healing statutes may extend has been the subject of much judicial consideration. The general rules applicable are quite well settled, but in the application of these rules to concrete cases a great diversity of opinion is manifested. In Cooley’s Constitutional Limitations, 530-545, the principal rules are stated as follows: “A retrospective statute curing defects in legal proceedings where they are in their nature irregularities only, and do not extend to matters of jurisdiction, is not void on constitutional grounds, unless expressly forbidden. # * * But the healing statute must in all cases be confined to validating acts which, the legislature might previously have authorized. It cannot make good retrospectively acts or contracts which it had and could have no power to permit or sanction in advance. * * * If the thing wanting or which failed to be done, and which constitutes the defect in the proceedings, is something the .necessity for which the legislature might have dispensed with by prior statute, then it is not beyond the power of the legislature to dispense with it by subsequent statute.
Bearing in mind that immediately upon the death of the intestate, title to the property vests in the heirs, and that proceedings to obtain an order to sell the real property have for their object divesting the heirs of their title and are quasi in rem only, we conclude that the principle announced by the authorities that notice to the heirs and others interested and an opportunity to be heard are essential, rests upon the fundamental rule of law incorporated in our Constitution that no one shall be deprived of his property without due process of law, and that notice and an opportunity to be heard are indispensable elements of due process. Accepting this as correct, and it follows that it was not within the power of the legislature, by previous enactment, to dispense with notice, and accordingly, the Act did not, and could not, cure the omissions in these proceedings.
It may be conceded that it is within the power of the legislature to repeal section 4819 above, and make other provision for the disposition of property belonging to one who dies intestate, but until that section is repealed or modified materially the title vests in the heirs, and cannot thereafter be taken from them except by proceedings in harmony with the due process clause of the Constitution.
Speaking of statutes designed to remedy defects in probate proceedings particularly, the author of the article in Corpus Juris says: “These generally cure merely those defects which do not concern jurisdictional steps, and it is usually held that they cannot constitutionally operate to give effect to a sale which is void for want of jurisdiction.” (24 C. J. 694. See, also, 18 Cyc. 880; McGillic v. Corby, 37 Mont. 249, 17 L. R. A. (n. s.) 1263, 95 Pac. 1063; Davidson v. Wampler, 29 Mont. 61, 74 Pac. 82.) These authorities all proceed upon fundamental
"We need not stop to review the case of Grignon v. Astor, 2 How. (U. S.) 319, 11 L. Ed. 283, and other authorities cited by counsel for appellant which follow that leading case. It is sufficient to say that a rule different from the one we have adopted prevails, in every jurisdiction in which a proceeding of this character is held to be strictly in rem, wherein seizure of the property itself constitutes notice to all persons interested.
We conclude by remarking that the doctrine of caveat
We have adopted the views which to us appear to be supported by reason and by the weight of authority, though decided cases to the contrary may be found.
The judgment and order are affirmed.
Affirmed.
