No. 6720 | Colo. | Jan 15, 1913
delivered the opinion of the court:
John Popst died intestate May 15, 1895, owning an undivided interest in unpatented mining lode locations in the Cripple Creek district. He left as his heirs, his widow Honora Popst, and eight minor children for whom she was appointed guardian. John Nolon, the administrator, under an order from the county court, sold the estate’s interest in the Brindsmaid and Uncle Sam locations at public sale, to Frank Dodson. By mesne conveyances the title to the Brindsmaid passed to Farnsworth, who patented it, and conveyed it to the Pinnacle company, which conveyed a portion to the Flying Cloud company. The Blanche company acquired the Uncle Sam. Before this suit was commenced, two of the children, George M. and John F., became of age and deeded an undivided 1/32, and the widow deeded an undivided 1/6 interest in both locations to S. A. Pipps and W. R. Gillpatrick in consideration for which they were to bear1 the expense of this litigation. • George M. Popst, John F. Popst, Honora Popst, S. A. Phipps and W. R. Gillpatrick. individually, and Mary, William, Michael, Hugh, Harry and James Popst minors, by Honora Popst as guardian commenced this suit July 2, 1902, against The Pinnacle Gold Mining Company, The Flying Cloud Gold Mining Company, John Nolon and the Blanche Gold Mining Company. The subject'of the action was the Brindsmaid and Uncle Sam locations; 'the object of the action was to recover the title that had been divested by the administrator’s sale of real estate to pay debts. The court found all the issues in favor of the children; also in favor of Phipps and Gillpatrick as to the 1/32 interest conveyed to them by George and John. It found against Honora Popst; also against Phipps and Gillpatrick on the r/6 interest conveyed by her. It declared the county court judgment void, and ordered it, the administrator’s sale, the certificate thereof, order approving it, administrator’s deed, patent to Farnsworth, and all the mense conveyances from Dodson to
There were four issues involved, first, that the county court acquired no jurisdiction over the proceedings to sell real estate to pay debts, because the petition failed to state necessary jurisdictional facts, and the order contained recitals showing the court acted without jurisdiction. Second, that no summons was in fact served on the children, though the decree recites, and the return shows they were personally served. Third, that the summons was not in fact served ten days prior to November 2, 1895, though the return shows and the decree finds ten days prior service. Fourth, that the purchaser at the administrator’s sale fraudulently purchased the locations for the administrator and his associates, for an inadequate price, of which fraud appellants had notice. The district court made no specific findings on any issue; but found all of them in favor of the children, which has compelled us to review all the issues and a very voluminous record. To make the case intelligent, we feel obliged to set forth rather fully the petition and order of sale, as follows:
. PETITION FOR SALE OF REAL ESTATE.
Filed October 21, 1896.
State of Colorado,
ss.
County of El Paso.
In the County Court.
In the matter of the estate of George Popst, deceased.
Petition for the sale of real estate.
John Nolon as administrator of the estate of George Popst, shows the'court:' That'the amount and value of the personal estate belonging to deceased' at his death, as shown by the inventory and appraisement herein, was $4,108.00; that of*455 ■said amount, the $108.00 consists of the household goods and furniture which are exempt from sale for the payment o£ debts; that the $4,000.00 consists entirely of1 72,499 shares of the capital stoclc of The Mineral Rock Mining Company, which, stock has no market or salable value at this time, and cannot now be sold or disposed of, although your petitioner has used! every effort to secure a sale thereof. That while the stock has now no market or salable value, it has a prospective value by reason of the favorable location of the property, and on this account something is likely to be realized from it for the estate in the future; that for this reason none of the estate’s personal property has been sold; that the amount of claims allowed against the estate, and the amount still existing and not allowed, as near as he is able to estimate the same, is about $1,000; but he is unable to state what portion thereof has been allowed.
Decedent died siezed of the following interest in real es-sate:
1/5 interest in the Cristle Lite lode, value $25.00;
1/4 interest in the Sarah Ann McDonald lode, value $25.00;
1/4 interest in the Flying Cloud lode, value $25.00;
1/2 interest in the Brindsmaid lode, value $25.00;
1/2 interest in the Uncle Sam lode, value $50.00;
1/3 interest in the Little Mary lode, value $25.00;
1/5 interest in the Mollie Gibson lode,-value $25.00;
1/5 interest in Old Branch lode, value $25.00;
1/5 interest in Roanna lode, value $150.00;
Ip the Cripple Creek mining district. That they all consist of mining lode locations only, no patents having been issued for amy of them. That he believes it will be to the interests of the estate to have its interest in the Roanna, Brindsmaid and Uncle Sain locations sold by order of court for the payment of debts*456 for the following reasons: First, because there is no personal property and no • funds in the hands of petitioner with which ¡to pay or discharge debts. Second, because said lode mining (claims are unproductive, and no revenue can be received from them without much expense, and the assessment work thereon ;for the year 1896, has not been done, and there is great danger that the estate’s interest in the locations may be lost unless the property is' sold. That in his judgment, the estate’s interest in the claims can be sold to better advantage at private sale than at public auction. That the heirs of decedent are Honora Popst his widow, John F., James, Harry A., Hugh J., Michael, William and Mary Popst, his minor children. Prayer for 'summons: that he be directed to sell the locations at private .salé; that the court aid him in disposing of the property, or (Otherwise provide for the payment of claims against the estate.
Decree for Sale of1 Real Estate.
(Filed November 14, 1896.)
State of Colorado,
ss.
County of El Paso.
In the County Court in Probate.
November Term, A. D. 1896.
In the matter of John Nolon, administrator of the estate of George Popst, deceased,
Petitioner,
vs.
Honora Popst, widow, John F., George M., James, Harry Á., Hugh J., Michael, William, and Mary Popst, ,
Respondents.
*457 Decree for the sale of real estate to pay-debts, filed November 14, 1896.
This day comes John Nolon, administrator and petitioner herein, and the respondents John P., George M., James, Harry A., Hugh J., Michael, William and Mary Popst; also come by George W. Musser as their guardian ad litem, and file their answer, and the cause coming on to be heard, and it satisfactorily appearing to the court from the records and files herein, that the respondents have been personally served with summons by the sheriff of this county more than ten days before the return day thereof (November 2), thereupon it is ordered that Honora Popst be called, and she being three times solemnly called in open court by the sheriff, comes not, nor any one for her, but makes default, whereupon it is ordered that the petition be taken as confessed against said adult respondent.
And now this cause coming on to be heard Upon the petition taken as confessed as aforesaid, the answer of the guardian ad litem, and the exhibits, proofs and testimony produced and taken in open court, and it satisfactorily appearing to the court that George Popst departed this life May 15, 1895, leaving Honora Popst, his widow, and John F., George, Harry A., Hugh J., Michael, James, William and Mary Popst, his children and only heirs at law; that petitioner was duly appointed administrator of his estate, and that letters were duly granted to him, bearing date September 30, 1895, and that petitioner has made a just and true account of the condition of the estate to the court, and that the personal estate is insufficient to pay the debts of George Popst, deceased, and the expenses of administration; and it futher appearing, and the court so finding, that the amount of the deficiency aforesaid, is the sum of $135.50, besides accrued interest there
It is therefore ordered that said petitioner sell at private sale, 1/2 interest in the Brindsmaid, 1/2 interest in the Uncle .Sam, and 1/5 interest in the Roanna mining lode locations to pay the debts now due from said estate, and the costs of administration due and to- accrue.
It- being the opinion of the court it would benefit the estate to sell at private sale, it is ordered that said premises be sold upon the following terms: for cash upon ten days’ notice in the Morning Times, a daily newspaper of general circulation in El Paso county, which terms shall be distinctly set forth in all the advertisements of sale. And if sold at private sale, the real estate shall not be sold for less than the appraised value of each separate parcel; and in no event shall- the petitioner herein, either directly or indirectly become the purchaser of any part thereof. And it is further ordered that upon making such sale, and payment by the purchaser, that petitioner execute and deliver to the purchaser a -certificate of sale as in the case of sales of real estate upon -execution, and report his action to the court; further that the cause stand continued to the next term for the hearing and action upon the report.
Mistakes, errors or irregularities are not jurisdictional, and, though they might reverse a case on review, will not render the judgment void.
In Nichols v. Lee, supra, (on rehearing) 154, no inventory and appraisement were filed, and it was contended that the filing of these documents was a condition precedent to the right to sell real estate; but this court held the statute meant that whenever it shall appear after and not by inventory and appraisement; that after was a designation of time, not jurisdictional, fixing the order of proceeding; that a failure to file any inventory and appraisement might be an irregularity sufficient to reverse the case on review, but would not prohibit the court from acquiring jurisdiction over the proceedings; that the petition is in effect a complaint, and is sufficient to confer jurisdiction upon the court if it contains enough to call upon those heirs who are parties, to respond; because nothing is taken as confessed, the court must take the testimony and decide the case on the evidence. The county court is a court of general jurisdiction, and presumably it found from evidence produced on the hearing of the petition, that the personality was not sufficient to discharge the debts against the estate. This finding could not be overthrown or reversed on the trial in the district court by evidence showing that the county court was mistaken.
The district court took evidence upon the value of this mining stock to ascertain, as we understand, whether there was a necessity to sell real estate to pay debts when the petition was filed. This it had no right to do, especially in the absence of a direct issue that the finding of the county court was based upon fraud. But waiving the irregularity of admitting this evidence, it shows that at the time the petition was heard, the stock was only worth about one cent or a cent and a half a share. Counsel further claims that the probate files introduced in evidence in the district court show that no claim had been allowed against the estate when the petition to sell was filed. If these files were competent for the purpose of impeaching the findings and judgment of the county court (which we do not decide), still counsel is mistaken as to their effect. The files show that the widow’s allowance was fixed at $1,860.00; that the exempt household goods and furniture were appraised at $108.00; that on October 25, 1895, she relinquished her claim to the appraisers’ estimate of specific property allowed her as widow’s allowance, and, in lieu thereof ■ elected to take the household goods at the appraised value of $108.00, and the balance of the allowance, $1,752.00, in money. This was a year before the petition to sell real estate was filed, and was a claim against the estate, for the payment of which, the administrator, in the absence of personal property from which it could be realized, could resort to the real
But before the officer’s return, and the court recitals could be overthrown, and the judgment declared void, the proof must be clear, unequivocal and convincing; in other words, beyond a reasonable doubt. — Kavanagh v. Hamilton, 53 Colo. 157" court="Colo." date_filed="1912-04-15" href="https://app.midpage.ai/document/kavanagh-v-hamilton-6565681?utm_source=webapp" opinion_id="6565681">53 Colo. 157; Butsch v. Smith, 40 Colo. 66; Baird v. Baird, 48 Colo. 509; 32 Cyc. 517.
At the time of the death of Popst in May, 1895, the children were of the following ages : Mary 3, William 4, Michael 6, Hugh 8, Harry 10, James 11, George 12 and John 16 years. This trial was in April, 1907, twelve years afterward. The sheriff’s return shows the summons from the county court was served in October, 1896, almost eleven years before this trial. All the children except the two eldest, George and John, testified and their evidence was intended to show that none of them had been served with summons. In fact James and some of the others stated positive^ they were not served, and he being the oldest, we will analyze his testimony. - He was a mere boy at that time, and it was a long period in a boy’s life before this trial occurred. It is unbelievable that at the time he testified, he could by his unaided memory recollect that no summons was served upon him almost eleven years before. When questioned as to how he knew he was not served, he said because on the date of the alleged service,, he had taken dinner with Mrs. Derrity, which, with nothing .to aid his memory, was even more astonishing. The most charitable view h> be taken of such evidence is that he had no recollection of being served, which in fact is the effect of his testimony. After so long a
The return of the officer showed personal service upon these children; the decree recites they were personally served; the attorney who conducted the proceedings for the administrator, testified that he made previous arrangements with Mrs. Popst, who at that time was friendly to and aiding in the proceedings, to have all the children at home so they could be served; and the officer who made the service testified that he went to their home, found the children there' according to arrangements of which he 'had been told, and served them all personally in the manner designated in the return. The evidence on the trial that the children were not served, was negative in character, and was not of that clear and convincing nature required to overcome the positive evidence, taken in connection with the official return and court recitals in the judgment. The district court was not warranted in finding the second issue against appellants.
There has been some discussion as to whether this attack upon the county court proceedings on the ground of fraud of the administrator is direct or collateral as to appellants. As to the parties to the county court proceedings, the attack is direct; but appellants’ claim as to them, it is collateral. In support of their .contention they cite Moore v. Neil, 39 Ill. 256, where it is said:
“Where a bill in chancery is filed to set aside an administrator’s sale, the proceedings should not, perhaps, be regarded as collateral to the former suit so far as it relates to the parties to that suit, but as to the purchasers, whose title derived from th.e sale is sought to be divested, it is as purely collateral as an action of ejectment.”
Also Kerr on Frauds and Mistakes, page 48, where it is said:
*468 “The transaction being valid until it is avoided, third parties without notice of the fraud may in the meantime acquire rights and interests in the matter which they may enforce against the party defrauded.”
And at pages 312 and 313, as follows:
“The right to impeach a transaction on the ground of fraud, has no place as against third parties, who have paid money and acquired a legal right to property, without notice of the fraud. As against a purchaser for valuable consideration without notice, having the legal title, no relief can be had in equity. If a man has paid his money in ignorance of the fact that another party has an equitable claim to the property, a court of equity will not deprive him of the benefit of his legal' title, even although his equitable claim be of later date than that of the other party. The rule that a man who advances money bona fide, and • without notice of the infirmity of the title of the seller, will be protected in equity applies equally to real estate, chattels, and personal estate. The rule is subject to no exception, even in favor of charities.”
Also sectioiis 2 and 3 of Van Fleet on Collateral Attack, where it is said: A bill in equity to set aside a judgment for fraud, becomes a collateral attack when it seeks to affect a bona fide purchaser under the judgment, that it is direct only when pursued in the time and manner provided by law against one who is not a bona fide purchaser.
We do not think it makes any difference in this case because appellees admit appellants were purchasers for value, and that the court could grant them no relief against appellants, unless it found they had knowledge of the fraud. The power to grant relief against appellants turns upon their knowledge of the fraud. This issue then embraces: (I) Proof of the fraud, and (2) Proof of appellants’ knowledge thereof.
Appellees admit appellants bought and paid for the property in good faith without actual knowledge of any infirmity in the title; but it is claimed they had constructive knowledge
It subsequently developed that this deed in fact only conveyed the Allen interest, although Vedder supposed at the time, that he bought all the title. He learned afterwards that Mrs. Popst had no authority to convey the undivided 1/4 interest belonging to the children, and that there might be a defeasance of the interest of the heirs in the Popst title by an administrator’s sale to pay debts. The title to these two locations from this source after passing to the Shurtloff Company, separates, the Brindsmaid going to the appellants and the Uncle Sam to the Blanche Company. The second source of Dodson’s title begins January 4, 1897, in an administrator’s' deed to the Popst undivided half interest in both locations - which was the interest he failed to get by the Allen-Popstdeed. From this source of title Dodson conveyed the Brindsmaid to the Shurtloff Company February 1, 1897. This converged the chain óf title to the Brindsmaid from each source, into the Shurtloff Company, from which it runs :■ Shurtloff
The Uncle Sam not being involved in this appeal, we would say nothing further about it, were it not that the contention is made that its conveyance throws light upon the transaction. We have already seen that the Allen title to the Uncle Sam, acquired by Dodson by the Allen-Popst deed, reached the Shurtloff Company through a conveyance from N1. W. Vedder. After Dodson received 'the administrator’s deed conveying the Popst undivided half of the Uncle Sam, he conveyed this title to it, acquired through the administrator’s sale, to Mrs. J. F. Vedder, wife of N. W. Vedder, April 28, 1897, and she on the same date, deeded it to Nolon. The title to this Popst half interest then runs: Nolon to Creighton, December 17, 1897; Creighton to' Carlton, October 31, 1897; Carlton to Blanche Company, November 6, 1899. The title to the Uncle Sam derived from the administrator’s deed never was conveyed to the Shurtloff Company. The title through the Allen-Popst deed to the Allen undivided half of the Uncle Sam we trace to the Shurtloff Company. It then continues: Shurtloff Company to Mrs. J. F. Vedder, April 29, 1899; Mrs. J. F. Vedder to Carlton, April 23, 1899; Carlton to the Blanche Company, November 6, 1899. In September, 1895, Allen and Mrs. Popst deeded the Brindsmaid and Uncle Sam to' Dodson. The evidence shows that Ni. W. Vedder bought these locations from Dodson for $800.00, which he paid in currency, and that Vedder thought he owned all the title. Nolon, Becker and Cree owned a patented lode called the Shurtloff. They all entered into a mutual agreement to deed these claims to a corporation in which each would receive stock representing his interest. The Shurtloff Company was formed sometime in the winter of 1895-6, to which Vedder deeded the -Brindsmaid and Uncle Sam, and under the agree
The evidence only raises a suspicion that Dodson, in 'bidding at the administrator’s sale, was purchasing for Nolon. The inference is drawn from the subsequent conveyance to Nolon and to the Shurtloff Company, in which he had stock. The undisputed evidence shows. that Nolon was a bona Ude purchaser of the half interest in the Uncle Sam which he bought from Vedder; and though he was a stockholder in the Shurtloff Company, he received no interest in the Brindsmaid, and no part of the consideration for which it was sold. When these matters of suspicion and inference are explained b}^ the undisputed evidence, any presumption of knowledge arising from the conveyances, vanishes. If the Shurtloff Company in fact owned the Brindsmaid and sold it to the Pinnacle Company for $2,000.00, which was paid to the Shurtloff, it seems as though it would have been impossible to so cover up the transaction, that no evidence of it could have been discovered. Appellees produced no other evidence; but rested this issue solely upon the inference arising from the conveyances, and then themselves destroyed the inference by oral testimony. It is claimed in argument that these parties were all partners in
The judgment will be reversed and' the cause remanded.
Reversed.