McCaughey v. Lyall

McFARLAND, J.

George McCaughey died intestate on March 1, 1890. The plaintiffs are his children and heirs at law. Dpring his lifetime, on June 6, 1889, the deceased executed a mortgage on certain land to one H. J. Finger to secure a promissory note for five hundred dollars. which was due and unpaid at the death of the decedent. After his death, Susan McCaughey was duly appointed and qualified as administratrix of his estate. The note and mortgage were duly presented to the administratrix and were allowed by her and approved by the probate judge. In January, 1894, Finger commenced an action against the administratrix to foreclose the mortgage, but did not make plaintiffs parties to such action. Such proceedings were had that a judgment of foreclosure was regularly rendered under which the land was duly sold by the sheriff on April 10, 1895, to defendant Lyall, who in due time received a sheriff’s deed therefor. Several years afterwards this present action was brought by said heirs to have it adjudicated that they are the owners of an undivided one half of the said land; that the claim of the defendants thereto be adjudged null and void; that plaintiffs recover the possession of the land, etc. A general demurrer to the complaint was interposed by the defendant Lyall and by other defendants. The demurrers were sustained; and plaintiffs declining to amend, judgment was rendered for defendants. From this judgment plaintiffs appeal.

The point relied on by appellants for reversal is that the judgment in the foreclosure suit was null and void as against them because they were not made parties to that suit, and were not given notice of its pendency. Counsel for appellants say in their brief: ‘ ‘ This cause is brought here for the purpose of having reviewed a single question arising from the record. This question is best suggested by the inquiry—Can the heir at law be divested of the title which the law casts upon him at the death of his intestate ancestor by any proceeding to which he is not made a party? This court has more than once decided the question in the affirmative. We believe the decisions are wrong in the particulars to which we shall presently advert, and we therefore shall respectfully urge

[617]

that they be overruled and the right rule of the law established.” This statement and admission make it unnecessary for us to review the former decisions of this court to show s that they do establish the law in the manner as admitted by appellants. Some of the cases are these: