Yeaton v. Barnhart

150 P. 742, 78 Or. 249, 1915 Ore. LEXIS 3

Opinions

Opinion by

Mr. Chief Justice Moore.

The petition for the sale of the real property did not state the amount of the sales of personal property, the condition and probable value of the different lots of land, the amount and nature of any liens thereon, nor the names, ages and residences of the heirs of the deceased, as required by the statute: Section 1253, L. O. L. In Wright & Jones v. Edwards, 10 Or. 298, 307, a petition for leave to sell land belonging to a decedent’s estate did not state the amount of sales of personal property, the charges, expenses or claims remaining unsatisfied, nor describe the real property to be sold, or state its condition or value, nor was the application verified by the administrator or anyone on his behalf, and it was held that the County Court did not secure jurisdiction of the subject matter, and, in ordering a sale of the premises, acted without authority, in consequence of which the proceedings were a nullity and conferred no right or title in or to the real property. In deciding that' case, Mr. Justice Lord, speaking for the court, says:

“Where there is matter of substance upon which jurisdiction can hinge, mere errors or defects, although material in some respects, but which might have been avoided on appeal, cannot avail to condemn a judicial proceeding when, by lapse of time, an appeal is barred, which has become the foundation of title to property. ’ ’

The plaintiff’s counsel, relying on such excerpt to establish the rule governing this case, insists that, notwithstanding the failure of the application for leave to sell the real property to aver all the facts required by tbe statute, tbe petition stated sufficient to invoke an exercise of jurisdiction by the County Court to authorize a sale of the land in order to discharge the indebtedness of the estate and to pay the expenses of the administration, and, this being so, an error was committed in dismissing the suit.

1. The answers interposed herein are equivalent to collateral attacks on the order of the County Court, directing a sale of the real property, and to render those defenses availing the order assailed must necessarily be void: Van Fleet, Col. Attack, § 3.

2. It becomes important therefore to consider the nature of that tribunal, and the character of the proceedings undertaken to secure a sale of the land. The org’anic law of the state declares:

“The judicial power of the state shall be vested in a Supreme Court, Circuit Courts, and County Courts, which shall be courts of record, having general jurisdiction, to be defined, limited, and regulated by law, in accordance with this Constitution”: Article VII, Section 1, of the Constitution of Oregon.

“The County Court shall have the jurisdiction pertaining to Probate Courts, and boards of county commissioners, and such other powers and duties, and such civil jurisdiction not exceeding the amount or value of five hundred dollars, and such criminal jurisdiction not extending to death or imprisonment in the penitentiary, as may be prescribed by law”: Id., § 12.

“The county judge may grant preliminary injunctions, and such other writs as the legislative assembly may authorize him to grant, returnable to the Circuit Court, or otherwise, as may be provided by law; and may hear and decide questions arising upon habeas corpus; provided, such decision be not against the # # proceedings of a court or judge of equal or higher jurisdiction” : Id., § 13.

Section 1 of Article YII of the fundamental law was amended November 8, 1910 (see Laws 1911, p. 7), but does not alter the clauses quoted until future legislation is had upon the subject, and, no statute for the entire state having been enacted in any of these particulars, these original provisions of the Constitution remain intact. Pursuant to a grant of power by the organic act, a statute was enacted which provides:

“The County Court has the exclusive jurisdiction, in the first instance, pertaining to a court of probate; that is: * * (Subdivision5) To order the sale and disposal of the real and personal property of deceased persons”: Section 936, L. O. L.

In construing these clauses of the fundamental law and of the statutes passed in conformity therewith, it has been frequently held that in probate matters the County Courts in Oregon are tribunals of general and superior jurisdiction: Russell v. Lewis, 3 Or. 380; Tustin v. Gaunt, 4 Or. 305; Monastes v. Catlin, 6 Or. 119; Slate’s Estate, 40 Or. 349, (68 Pac. 399); Smith v. Whiting, 55 Or. 393 (106 Pac. 791); Hillman v. Young, 64 Or. 73 (127 Pac. 793, 129 Pac. 124). It will thus be seen that the organic law invests the County Court with jurisdiction in probate matters and confers upon that tribunal limited judicial functions in the common-law sense, which power the court can exercise in all prescribed matters, beyond its special authority which is restricted to a performance of specific statutory duties pertaining to the transaction of county business. The County Court, having ordered a sale of the premises, necessarily decided that jurisdiction of the subject matter over which its authority extends had been secured in a proceeding based upon a proper allegation of the facts requiring an exercise of its power; and, it being thus competent to determine whether or not the facts set forth in the petition to sell the real property to pay the debts incurred by the deceased were adequate, the determination is conclsuive against all the world, unless reversed on appeal or avoided for fraud in a direct proceeding: Woerner, Am. Law Admr. (2 ed.), § 145.

3. In the petition for leave to sell the real property of a decedent’s estate it is the allegation of indebtedness that discloses the necessity for the sale and affords the basis upon which the order to that effect must necessarily be predicated, the description of the premises which supplies the object upon which the order of sale is to operate, and the verification of the petition that authorizes the County Court to determine the truth of the averments. In Wright S Jones v. Edwards, 10 Or. 298, 307, it will be kept in mind that the application for leave to sell did not state the indebtedness, nor describe the real property desired to be sold, nor was the petition verified.

The statute relating to probate proceedings, as far as material herein, reads:

‘ ‘ The court exercises its powers by means of * * an affidavit or the verified petition or statement of a party”: Section 1135, L. O. L.

In Rutenic v. Hamaker, 40 Or. 444, 451 (67 Pac. 196, 199), it is said:

“The mode of proceeding in the administration of estates is in the nature of a suit in equity, as distinguished from an action at law; the County Court exer^ cising its power by means of a citation to the party, and securing jurisdiction of the subject matter by means of a verified petition, enforcing its determination by orders and decrees.”

An application for leave to sell real property is in the nature of an independent proceeding, in which the jurisdiction of the County Court to grant the relief desired must depend upon the sufficiency of the petition which, in order to defeat a direct attack, must substantially comply with the requirements of the statute. That court being a tribunal having general jurisdiction in probate matters, it would seem necessarily to follow that, if the application for leave to sell were lost, the order directing the sale would afford the requisite presumption that the petition contained the necessary averments. If it affirmatively appear from an inspection of a petition that it failed to show any necessity for the sale, or to describe the real property desired to be disposed of, jurisdiction of the subject matter would not thereby be secured and the order of sale must be void and vulnerable on collateral attack, since the proceedings to sell the land were probably in the nature of an application for an exercise of a special statutory power: Wright & Jones v. Edwards, 10 Or. 298, 307; In re Noon’s Estate, 49 Or. 286 (88 Pac. 673, 90 Pac. 673).

The rule thus established is considered controlling as far as it is applicable to the facts there involved. It is believed, however, that such legal principle should not be extended, and where, as in the case at bar, the petition shows a necessity for the sale, particularly describes the real property involved, and is duly verified, there are matters of substance alleged upon which jurisdiction can hinge, and mere errors and defects', although material in some respects, and which might have been avoided on appeal, cannot avail to condemn the proceeding when, by the lapse of time, an appeal has become barred, and the order appropriate to the foundation of title to property: Walker v. Goldsmith, 14 Or. 125, 143 (12 Pac. 537); Lawrey v. Sterling, 41 Or. 518 (69 Pac. 460). See, also, Van Fleet, Col. Attack, §§ 815-829.

4. Stephen Brynjolfson having died intestate November 13, 1909, his daughter, the defendant Lena Yeaton, inherited the real property described herein, subject, however, to her mother’s dower estate in the premises and to the indebtedness of the estate and the expense of administering thereon: Sections 7286, 7348, L. O. L. Any judgment rendered against Mrs. Yeaton that was properly docketed prior to March 20, 1913, when the application for leave to sell the land was made, became a lien upon her interest in the premises.

5. A judgment given by a Justice’s Court for the recovery of money does not become a lien upon real property until a proper transcript thereof has been filed with the county clerk of the county where such judgment was rendered: Section 2442, L. O. L. When a judgment thus given has been duly docketed in the Circuit Court of the proper county, it may be enforced as a judgment of that court: Id., § 2449. In the judgments obtained in the Justice’s Court of Polk County against Lena Yeaton and her husband by the defendants N. Selig, Ethel Chambers and Ed Rich, no. transcript of either determination was filed with the county clerk of that county until October 6, 1913, nor in Yamhill County, where the real property is situated, until five days thereafter. Neither of these judgments was a lien upon the premises when on March 20, 1913, the administratrix filed her duly verified petition for leave to sell the land, and hence no necessity existed to make any mention of either in the petition. Copies of the transcript of such judgments were made parts of the complaint, having attached to each an attestation as follows:

“I hereby certify I am the duly elected, acting and qualified justice of the peace for above-named justice of the peace district for Polk County, Oregon; that the foregoing is a true transcript of the record of the above-entitled action, as the same appears in my docket.

“[Signed] J. H. Flower,

“Justice of the Peace, “4th Dist. Polk County, Oregon.”

As this certificate did not state that the copy had been compared by the justice of the peace with the original, and that it was a correct transcript therefrom and of the whole or some specified part thereof, as required by statute (Section 771, L. O. L.), no lien was created by the docket entry made in Yamhill County as to either of those judgments: Evans v. Marvin, 76 Or. 540 (148 Pac. 1119).

6. The complaint does not state when the judgment secured by the defendant Barnhart against Lena Yea-ton and her husband in the Circuit Court of Yamhill County, September 21, 1911, became a lien upon the real property hereinbefore described. A judgment given by a Circuit Court must be entered by the clerk within the day it is rendered: Section 201, L. O. L. Immediately after recording the judgment, the clerk is required to make a memorandum thereof in the lien docket: Id., § 205. Invoking the presumption that official duty has been regularly performed, it must be assumed that Barnhart’s judgment was duly docketed and became a lien upon the premises prior to March 20, 1913, when the administratrix applied for leave to sell the land.

7. The sale of the real property by the administratrix to pay the debts of the deceased did not divest the widow of her right of dower in the premises: House v. Fowle, 22 Or. 303 (29 Pac. 890); Whiteaker v. Belt, 25 Or. 490 (36 Pac. 534); In re Smith’s Estate, 43 Or. 595 (73 Pac. 336, 75 Pac. 133).

“It is evident that the purchasers at an administrator’s sale,” says a text-writer, “can acquire only that interest in the property sold which the deceased owned at the time of his death. The rights of others, holding by a title superior or equal to that of the deceased debtor, cannot be affected by the proceedings in the Probate Court”: 2 Woerner, Am. Law of Admr. (2 ed.), §482.

8. A sale by an administrator of the real property of an intestate to pay his indebtedness deprives the heirs of their estate in the premises, since their rights are inferior to the demands of the creditors: Id., § 471. As the right of an heir to a share of his ancestor’s real property is extinguished by an administrator’s sale of the premises to pay the indebtedness of the decedent, so, too, such sale when properly petitioned for and regularly conducted must necessarily destroy the lien upon such land of any judgment rendered against the heir: Nichols v. Lee, 16 Colo. 147 (26 Pac. 157). In case of a sale under such circumstances, the judgment creditor of an heir is not remediless; for, when the distributive share of the heir has been ascertained and ordered by the court to be paid, such proportionate part of the estate is no longer in the custody of the law, and may thereupon be garnished in the hands of the administrator or executor: Harrington v. La Rocque, 13 Or. 344 (10 Pac. 498). The defendants N. Selig, Ethel Chambers and Ed Rich made no effort to secure by garnishment any part of the distributive share ascertained to be due Lena Yeaton and ordered by the County Court to be paid to her, and since neither of these defendants had a lien upon the real property, he is not in a position to question the proceedings of that court whereby a sale of the premises was ordered or conducted.

When the petition for leave to sell the real property was filed, the judgment obtained by the defendant Barnhart against the defendant Lena Yeaton was a lien on her inherited interest in the premises. A sale of that interest to pay her father’s indebtedness extinguished the lien, notwithstanding which the holder thereof could have enforced his demand against her distributive share of the estate, which right he did not elect to exercise. As the proceedings undertaken to sell the real property were not void, his remedy is now limited to a recovery against Mrs. Yeaton and her husband, and he has no legal claim against the plaintiff’s premises.

The decree will therefore be reversed and one entered here quieting the plaintiff’s title to the real property hereinbefore described; there apparently being no controversy as to the facts.

Reversed.

Mr. Justice Benson, Mr. Justice Burnett and Mr. Justice Harris concur.