Brusha v. Phipps

Letton, J. This is an appeal from a decree refusing relief to the plaintiff in an action to quiet the title to certain premises in Nebraska City. In 1872 Nancy Brusha, with her husband and son, lived in Phelps City, Missouri. The husband died that year, and from that time until 1889 she and her son, William Brusha, the plaintiff in this action, lived together. In 1889 the son married, and moved to Ong, Nebraska, where she lived with him until October of that year, when she removed to Nebraska City, and lived there until her -death, with the exception of a few months’ absence at different times for the benefit of her health. She had lived in a rented house until August, 1895, when she purchased the property in controversy. -In 1890 her son left Nebraska, she never saw him afterwards, and for years before her death he had not communicated with her. From the time she bought the property, until about three or four years before her death, Mrs. Brusha lived in the house, and related rooms, but, her health failing, she became unable to take care of the property, and therefore removed to a steam-heated apartment building in the city, where she was living at the time of her last illness. She died intestate, and the plaintiff is her only heir. Upon the settlement of her estate claims were allowed in excess of the value of her personal property, and the [824] administrator of her estate applied to the district court for a license to sell real estate to pay the debts. A license was granted, and the property in controversy sold to Mamie Phipps at administrator’s sale. The sale was confirmed, and an administrator’s deed executed on September 21, 1907, under which Mrs. Phipps took and now holds possession. On the 9th of November, 1907, William Bruslia began this action for the purpose of quieting his title to this property, alleging that if was the homestead of his mother, Nancy Bruslia, at the time of her death. A number of other issues were presented by the pleadings, but at the trial the issue was narrowed to the question as to whether the property constituted the homestead of the deceased at the time of her death, and hence, this is the only matter requiring consideration in this court. Much of the evidence- taken was as to whether when Mrs. Bruslia left the house some years before her death she had the intention of returning there to live, or whether she had abandoned it as her home; but, in the view we take of the law governing the case, it is unnecessary to consider this point. When Mrs. Bruslia bought the property she Avas a Avidow, Avith an adult son, the plaintiff, AAho was then living in Arizona, and avIio was himself the head of a family consisting of a- Avife and children. She had no one dependent upon her, and no one ever lived there with her as a member of her family. Since she Avas not married, in order to entitle her to the homestead exemption, she must have been, as provided by section 2, ch. 36, Comp. St. 1909 (Ann. St. sec. 6276), “the head of a family, within the meaning of section 15.” Section 15, ch. 36, Comp. St. 1909 (Ann. St. 6289), is as follows: “The phrase ‘head of a family’, as used in this chapter, includes within its meanings: First. The husband, Avhen the claimant is a married person. Second. Every person who has resided on the premises with him or her, and under his care and maintenance, either: (1) His or her minor child, or the minor child of his or her deceased wife or husband. (2) A minor brother or sister, [825] or the minor child of a deceased brother or sister. (3) A father, mother, grandfather or grandmother. (4) The father or mother, grandfather or grandmother of a deceased husband or wife. (5) An unmarried sister, or any other of the relatives mentioned in this section who have attained the age of majority and are unable to take care of or support themselves.” Mrs. Brusha falls within neither of these divisions. She was not married, and was not the head of a family, and therefore was not entitled to claim the property as a homestead. It was not exempt from sale by the administrator of her estate for the purpose of paying debts. Emerson v. Leonard, 96 Ia. 311; Holnback v. Wilson, 159 Ill. 148; Walker v. Thomason, 77 Ga. 682; Betts v. Mills, 8 Okla. 351. This disposes of most of the points made in plaintiffs brief, except the contention that the confirmation is void because it was made at chambers' in vacation without 10 days’ notice to the adverse party. The plaintiff relies on the case of Armstrong v. Middlestadt, 22 Neb. 711, which holds that a judge has no authority to confirm a sale in chambers in vacation, unless 10 days’ notice has been given to the adverse party or his attorney of record. The sale in that case was made under a decree of foreclosure of tax liens in a proceeding-in which there was an adverse party, notice to whom, under section 498 of the code, was essential to jurisdiction. The sale in this case, however, was made in pursuance of a special power conferred by the statutes relating to the sale of real estate by executors and administrators for the purpose of paying debts of the deceased. Poessnecker v. Entenmann, 64 Neb. 409; Bixby v. Jewell, 72 Neb. 755. While the language of the syllabus is general in the case relied upon, it must be held to apply to “all cases” of sales under code provisions, and not to sales made under different statutory powers. A similar' question was presented in Stewart v. Daggy, 13 Neb. 290, with respect to the authority of a judge of the district court to grant a license at chambers to a guardian to sell the real estate of his [826] ward. It is pointed out in the opinion by Judge Maxwell that the power to sell property by guardians and administrators was, in territorial days, exercised by the probate court of the proper county, but that by the constitutions of 1866 and 1875 this power was taken from the probate court and conferred upon the district court. It was held that, “in granting a license, the duties of a judge of the district court are precisely the same as those of a judge of the probate court were under the territorial laws.” See, also, opinion of court, and dissenting opinion of Judge Maxwell, in Slack v. Royce, 34 Neb. 833, 846. The same reasoning applies to sections 87 and 88, ch. 23, Comp. St. 1909 (Ann. St. 1909, secs. 4961, 4962), which provide for the return of the license and the confirmation of the sale by the district judge. Section 87 provides: “The executor or administrator making any sale shall immediately make a return of his proceedings upon the order of sale in pursuance of which it is made to the judge of the district court granting the same,” etc. Section 88: “If it shall appear to the district judge that the sale was legally made and fairly conducted, and that the sum bid was not disproportionate to the value of the property sold, or if disproportionate, that a greater sum than above specified cannot be obtained, he shall make an order confirming such sale, and directing conveyances to be executed.” By section 57, ch. 19, Comp. St. 1909 (Ann. St. 3099, sec. 4751),.a judge of the district court at chambers is authorized: “(5) To discharge such other duties or exercise such other powers as..may be conferred upon a judge in contradistinction to a court.” We have heretofore held that in a proceeding by an administrator to sell real estate of his decedent for the purpose of paying debts there are, strictly speaking, no adverse parties. The proceeding is of the nature of an action in rem. McClay v. Foxworthy, 18 Neb. 295; Schroeder v. Wilcox, 39 Neb. 136. This being the case, and the provisions of the statutes relating to sales by administrators for the payment of debts having been folloAved, no notice to the [827] plaintiff was necessary in order to confer jurisdiction upon the judge of the district court to confirm the sale in chambers, and the sale and confirmation were valid and effectual to pass the title. The judgment of the district court, therefore, is Affirmed.