State ex rel. Chemung Mining Co. v. Cunningham

SULLIVAN, C. J. — This is a proceeding brought in the district court for a writ of mandate to compel the defendant, Cunningham, as administrator, to execute a conveyance of an undivided one-third interest in a certain mining claim situated in Shoshone county. The facts are as follows: Clarence Cunningham, as administrator of the estate of David McUelvey, deceased, made application to the probate court of Shoshone county for an order to sell an undivided one-third interest of the Skookum lode mining claim. On said application an order of sale was granted, and the administrator caused notice to be posted and published for bids for the sale of said property, as required by the order of sale, and received but one bid thereunder for said property. Said bid or offer was made by the Chemung Mining Company, and the price offered was $700, that being the only bid received under said notice. The said administrator made his return of sale to the said probate court, wherein he reports, inter alia, as follows: “I did on said day sell said real estate to the Chemung Mining Company, the purchaser thereof, and request that said sale be confirmed.” Said return is dated June 15, 1897. Said sale was confirmed by said court on the thirteenth day of August, 1897. It appears from the transcript that an order confirming a sale of said real estate was made on the twenty-sixth day of July, 1897. Said order [116] recites the facts of said return having been made, and of the sale of said real estate to Kennedy J. Hanly for the sum of $700, instead of to the Chemung Mining Company, as actually shown by said return. There is sufficient in the record to show why that change was made. The return of the administrator showed that the only offer or bid received at said sale was one from the Chemung Mining Company, and the court was induced to believe that said Kennedy J. Hanly, who was one of the directors of said corporation, was the proper person to take the title to said real estate, and for that reason confirmed the sale and ordered the conveyance to be made to him; whereupon said administrator executed a conveyance to said Hanly. Thereafter said court set aside said last-mentioned order, and confirmed said sale to the Chemung Mining Company,, and directed said administrator to convey a one-third interest in and. to said Skookum mining claim to said company, which order said administrator refused to obey. Thereupon application was made to the judge of the district court in and for said Shoshone county for a writ of mandate to compel said administrator to convey said real estate to the Chemung Mining Company as directed by said last-mentioned order of the probate court. Said administrator answered the application or petition for said writ by setting forth the facts substantially as above set forth, and stating that under the order confirming the sale to Hanly he had received the purchase price from him, and executed a deed conveying to him the undivided one-third interest in and to said mining claim; and the matter was heard, and peremptory writ granted, whereby said administrator was required to convey said undivided one-third interest in and to said Skookum lode mining claim to said Chemung Mining Company. This appeal is from the judgment of the court granting said writ. It is contended that the plaintiff or petitioner had a plain, speedy and adequate remedy at law by appeal from the order confirming the sale to Hanly. In answer to that contention it is sufficient to say that the probate court set aside said order confirming the sale to Hanly on the thirteenth day of August, 1897, and entered an order confirming the sale to the Chemung Mining Company; and, further, that the order confirming the [117] sale to Hanly was absolutely void, for the reason that the sale to Hanly was not reported “under oath” to said court, as required by the provisions of section 5491 of the Bevised Statutes nor was it reported at all in writing to said probate court. The administrator is required to make a return of his proceedings of any sale of real estate, which return must be filed in the office of the clerk of said court. Section 5491 of the Bevised Statutes, is as follows: “No sale of any property of an estate of a decedent is valid, unless made under order of the probate court, except as otherwise provided in this chapter. All sales must be reported under oath and confirmed by the probate court before the title to the property sold passes.” There was no return of a sale to Hanly, and the order confirming a sale to him was void. Said section 5491 of the Bevised Statutes is mandatory, and until a sale is reported under oath the court has no basis for an order confirming a sale. No title can pass until at least two steps are taken, to wit, a return of sale made under oath, and its confirmation by the court. No title passed to Hanly by the conveyance executed by Cunningham, as administrator, to him. It was the official duty of said administrator, enjoined by statute, to execute a conveyance to said mining claim to the Chemung Mining Company, as directed by said order confirming the sale; and, as he refused to do so, said company was entitled toi a vcrit of mandate, upon a proper showing, to compel him to perform his duty in that regard, as no other plain, speedy and adequate remedy is provided for such cases. The judgment appealed from is affirmed, and costs of this appeal are awarded to the respondent. (June 13, 1898.) Huston and Quarles, JJ., concur.