Vanasse v. Labrecque

381 A.2d 269, 1977 Me. LEXIS 334

• Court: Supreme Judicial Court of Maine
• Decided: December 21, 1977
• Status: Published

Opinions

GODFREY, Justice.

Appellant Alfred R. Vanasse brought an action to set aside a sale of real estate which was accomplished by an executrix pursuant to a probate court order granting her a license to sell. The procedures leading up to sale clearly complied with all statutory requirements that are explicitly made mandatory. Proper notice by publication was given, but appellant argues that the statute and the United States Constitution required personal notice to him of the application for the license and that it was not given. He seeks to raise this argument in this collateral attack on the order of the probate court.

This controversy arose out of probate proceedings in York County to settle the estate of appellant’s mother. By her will she left her one-half interest in a piece of property in that county to appellant and his sister as tenants in common. The other half interest in the property was owned by a Mrs. Rabisaukas. Appellant’s sister, ap-pellee Madeleine LaBrecque, was appointed executrix in May of 1968. Appellant, the executrix, and Mrs. Rabisauckas later discussed the possibility of selling the land. Appellant rejected an offer by his co-tenants to sell their interest to him, and he refused to authorize a proposed sale of the property to appellees Wright. Mr. Vanasse knew that probate proceedings were pending and was in contact with persons involved in the proceedings but did not usually get satisfactory responses to his inquiries.

In June, 1969, he attended and participated in a hearing on the first account filed by the executrix. At that time, he examined various documents in the court file, but he testified that he did not see a petition for a license to sell which was on file but was never acted on. In April, 1970, the executrix filed a second petition for a license to sell real estate. The purpose of the sale was to obtain cash for payment of debts and expenses of administration, for which the personalty in the estate was insufficient. After notice by publication this petition was approved on May 12,1970. No notice of this petition was mailed to appellant though the executrix and the court knew his address in Canada and knew that he was interested in developments in the administration of the estate.

On July 3, 1970, in response to inquiries by appellant, the register of probate wrote appellant informing him of the granting of the license. Appellant testified that he did not receive this letter during July or August because he was absent from home and did not have his mail forwarded. The property was sold pursuant to the license on August 10, 1970, to appellees Wright, who mortgaged it to appellee Casco Bank & Trust Company. The Superior Court found that in entering that transaction the Wrights and Casco Bank relied in good faith on the apparently valid order of the probate court granting the license to sell real estate. Nothing in the record suggests that the price paid for the property was inadequate. Appellant testified that he did not actually learn of the sale before October 28, 1970.

On appellant’s view of the facts, as a person aggrieved by the May 12 order granting the license, he might have appealed the order to the Supreme Court of Probate within twenty days after his return from Canada,¹ or he could have petitioned for allowance of such an appeal any time within a year after the order on the ground of the alleged defect of notice.² He took no such appeal and filed no such petition. Rather, he brought this action in Superior Court to set aside the sale or to impress a trust for his benefit on the property conveyed to the defendants. The court refused to grant the relief requested because the action amounted to a collateral attack on an order that appellant could have challenged by appeal. We affirm.

Maine probate courts have power to grant licenses to sell real estate by virtue of 18 M.R.S.A. § 2051 (1964). Section 2052 of title 18 sets forth the notice procedures which must be followed to obtain such a license:

“No license shall be granted for the sale of any such real estate unless by written consent of all persons interested therein, until after public or personal notice of the time and place of hearing to all such persons to appear and object if they see cause; but such notice, when public, may be published in a consolidated form . . . . If any party interested resides without the State, or the real estate is situated in a county other than the county is which the proceedings are pending, such special notice may be given as the court directs.”

Ordinarily, notice by publication is sufficient notice to comply with the requirements of this statute. However, the statute authorizes special notice when an interested party resides outside the state. Appellant argues that this authorization amounts to a mandate that personal notice by mail be given to interested parties who reside outside the state if their address is known. He supports his statutory argument with the additional claim that such a non-resident has a constitutional right to notice by mail. He relies on Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950) to buttress that position.

The parties agree that the license was obtained in compliance with all expressly mandatory statutory requirements. The probate court had jurisdiction over the land in the county. Public notice was given by newspaper publication. The proceedings were valid on their face, and the Superior Court found that the Wrights and Casco Bank purchased their interests in the property in good faith reliance on that apparent validity. Appellant learned of the sale on or after October 28,1970 but did not appeal or seek leave to appeal from the order. Rather, he mounted this collateral attack on the order.

A Maine statute bars collateral attack on sales pursuant to licenses to sell real estate issued by a court of competent jurisdiction. 18 M.R.S.A. § 2252 (1964) provides:

“In an action brought to contest the validity of any such sale, by the heir or others claiming under the deceased; by the wife or her heirs, in case of a sale of her estate by her husband; or by the ward or person claiming under him; no such sale shall be avoided on account of any irregularity in the proceedings, if it appears:

1. License granted; deed executed and recorded. That the license was granted by a court of competent jurisdiction and that the deed was duly executed and recorded;

2. Bond and notice. That the person licensed gave the bond and notice of the time and place of sale required by law;

3. Premises sold as authorized; purchaser in good faith. That the premises were sold in such manner and within such time as the license authorized and are held by one who purchased them in good faith.”

This statute is designed to protect innocent purchasers against claims based on “irregularities” in the probate court proceedings. Even if we were to regard personal notice as mandated by the license statute or the United States Constitution on these facts, the failure to give such notice did not result in the probate court’s not being a “court of competent jurisdiction.”

Appellant does not claim that the probate court lacked jurisdiction over the property within the county. Nor does he claim that the probate court lacked the general power to grant the license. Rather, relying on the ancient case of Snow v. Russell, 93 Me. 362, 45 A. 305 (1899), he argues that since the procedures mandated by the statute were not complied with, the probate court was not a court of competent jurisdiction as defined in that case. Snow v. Russell involved a sale pursuant' to license which was issued after the probate court purported to waive the requirement that the executor post bond. The court found that the bond requirement was an express mandatory, nonwaivable requirement of the licensing statute, that authorizing sale without posting bond was beyond the court’s power, and hence that the court’s order granting the license was void and subject to collateral attack. However, the court in Snow v. Russell did recognize that decisions of the probate courts in matters relating to probate, within the authority conferred upon them by law, are conclusive unless appealed from; that is, they are not subject to collateral attack. Snow v. Russell, 93 Me. 362, 377, 45 A. 305, 309 (1899).

An order is not void or beyond the power of the court merely because the judge takes an erroneous view of the law. Baltimore Steamship Co. v. Phillips, 274 U.S. 316, 47 S.Ct. 600, 71 L.Ed. 1069 (1927); Clough v. Newton, 160 Me. 301, 203 A.2d 690 (1965). Such defects must be corrected by direct review or by petition to annul presented directly to the court of origin. The notice statute in the present case appears to grant to the probate court discretion in giving special notice. The court's order did not conflict with the express terms of the statute. Therefore, the court’s decision to grant the license, even if erroneous, was within the authority conferred by law on probate courts.

A major purpose of the statutes involved in this case is to enable probate courts to settle estates with a reasonable degree of finality. The procedure for correcting errors afforded by sections 401 and 403 of title 4, must be followed within the limits of time prescribed in those statutes in order that purchasers in good faith, like the respondents here, may be secure, at least after those time limits are passed, in the titles they acquire through orders of the probate court.

Appellant argues that the licensing order of the probate court was invalid because issued after a proceeding of which he was not properly notified under the rule in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950).³ He seeks to set aside the order on this ground in spite of the fact that the land in question was transferred to good faith purchasers for fair value who relied on the apparent regularity of the probate proceedings. Neither Mullane nor any of the later cases applying the Mullane rule have gone so far as to hold that an asserted deficiency in notice will justify invalidating such a sale on collateral attack.⁴

We do not find it necessary in this case to decide whether the Mullane rule is applicable to the procedure under which the realty in question was sold. We hold that where innocent purchasers have acquired a decedent’s land for fair value from an executrix who has acted, to all appearances from the public records, in accordance with a valid license to sell issued by a court with jurisdiction over the land, after all express statutory requirements have been observed, the heir or devisee who claims an interest in the land may not have the sale invalidated in a collateral action.

Appellant learned of the sale in October of 1970, but he did not appeal to the supreme court of probate pursuant to 4 M.R.S.A. section 401 or 403. Under these circumstances he cannot attack the probate court’s interpretation of the law in an action in Superior Court to set aside the sale.

On the facts of this case, we are not required to determine whether a direct attack by appellant under section 401 or 403 of title 18 would have succeeded, and we intimate no opinion on that question.

The entry is:

Appeal denied.

Judgment affirmed.

POMEROY, WERNICK, ARCHIBALD and DELAHANTY, JJ., concurring.

1 . The first paragraph of 4 M.R.S.A. § 401 (1964) provides, in part, as follows:

“The Superior Court is the supreme court of probate and has appellate jurisdiction in all matters determinable by the several judges of probate. Any person aggrieved by any order, sentence, decree or denial of such judges [with exceptions not pertinent here] may appeal therefrom to the supreme court of probate to be held within the county, if he claims his appeal within 20 days from the date of the proceeding appealed from; or if, at that time, he was beyond sea, or out of the United States and had no sufficient attorney within the State, within 20 days after his return or the appointment of such attorney.”

2 . 4 M.R.S.A. § 403 (1964) provides as follows:

“If any such person from accident, mistake, defect of notice or otherwise without fault on his part omits to claim or prosecute his appeal, the supreme court of probate, if justice requires a revision, may, upon reasonable terms, allow an appeal to be entered and prosecuted with the same effect as if it had been seasonably done; but not without due notice to the party adversely interested nor unless the petition therefor is filed with the clerk of said court within one year after the decision complained of was made.”

3 . The principle applied by the Supreme Court in Mullane is that due process of law generally requires notice reasonably calculated under the circumstances to apprise interested parties of the action and afford them an opportunity to present their objections. Specifically, Mullane held that notice by newspaper publication is not enough with regard to a person whose name and address are known and whose legally protected interests are directly affected by the proceeding. The Supreme Court has applied the Mullane rule in condemnation proceedings (Walker v. City of Hutchinson, 352 U.S. 112, 77 S.Ct. 200, 1 L.Ed.2d 178 (1956); Schroeder v. City of New York, 371 U.S. 208, 83 S.Ct. 279, 9 L.Ed.2d 255 (1962)); tax lien foreclosures (Covey v. Town of Somers, 351 U.S. 141, 76 S.Ct. 724, 100 L.Ed. 1021 (1956)); notices to file claims in bankruptcy (City of New York v. New York, N.H. & H.R.R., 344 U.S. 293, 73 S.Ct. 299, 97 L.Ed. 333 (1952)); and proceedings to forfeit a get-away automobile as contraband (Robinson v. Hanrahan, 409 U.S. 38, 93 S.Ct. 30, 34 L.Ed.2d 47 (1972)). The question of possible application of the Mullane rule has been presented to the Maine Supreme Judicial Court in a number of cases. See, e. g., Michaud v. City of Bangor, 159 Me. 491, 196 A.2d 106 (1963); City of Auburn v. Mandarelli, Me., 320 A.2d 22 (1974); Pool Beach Ass’n v. City of Biddeford, Me., 328 A.2d 131 (1974).

The Supreme Court has not yet had occasion to decide whether the Mullane rule should be regarded as modifying its earlier decisions upholding probate proceedings based on notice by publication. See Farrell v. O’Brien, 199 U.S. 89, 25 S.Ct. 727, 50 L.Ed. 101 (1905) (upholding probate in common form followed by a one-year period for possible will contest). See Comment, Probate Proceedings—Administration of Decedents’ Estates—The Muilane Case and Due Process of Law, 50 Mich.L.Rev. 124 (1951).

4 . See Schroeder v. City of New York, supra n.3, 371 U.S. at 211 n.5, 83 S.Ct. at 281.