Howard v. Bryan

California Supreme Court Sep 29, 1900 No. Sac. No. 684Published

Before: Garoutte

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Holding. The court held that a guardian's mortgage order is not void on collateral attack due to a potentially defective petition if it contains some valid charges, and that the mortgage is valid if construed to bind each minor's interest only for their proportionate share of the debt. Furthermore, the failure to execute a promissory note as required by statute is a non-jurisdictional irregularity that does not invalidate the mortgage.

Issues

Whether a petition for a guardian's mortgage is void on its face if it includes some non-chargeable items.
Whether a mortgage order is void for creating a joint indebtedness against minors' interests.
Whether the failure to provide a promissory note as required by statute renders a guardian's mortgage void.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“it will be held in support of the validity of the order that each minor’s interest in the estate is only bound as security for one-fifth of the amount of the debt”

“we do not deem the departure jurisdictional. The attack here made upon the mortgage being collateral, no mere error or irregularity in the proceeding, however important or substantial, will invalidate the mortgage.”

Synopsis

Guardian and Ward.—-Where a Petition to Mortgage Property of minor heirs to raise a certain sum of money sets forth the items for which the money is wanted, such petition is not void on its face, though part of the items only are charges against the estate; hence a collateral attack on. the validity of the petition on such ground, in a suit to foreclose the mortgage, is unavailing.

Guardian and Ward—Mortgage.—Where an Order of Court Authorizing a guardian to mortgage the property of minor heirs is susceptible of two constructions, one of which makes the interest of -each minor liable only for his share of the entire debt, and- the other makes the share of each liable for the whole debt, and the court can reasonably construe it to bind the interest of each for his share only, such construction will be given, and the order will be held valid.

Guardian and Ward—Mortgage—Collateral Attack.—Under Code of Civil Procedure, section 1578, as amended, declaring that a mere error or irregularity in mortgaging the property of minor heirs under order of court shall not invalidate the mortgage where the mortgage is attacked in a collateral proceeding, a mortgage given without delivery of a note to the mortgagee is valid, as failure to give a note is a mere irregularity.

GAROUTTE, J. Mrs. Bryan, the guardian of the persons and estates of her five minor children, under an order of the court mortgaged their interest in certain real estate, amounting to an undivided five-twentieths, to secure a loan of $9,500. Mrs. Bryan individually and her five adult children also mortgaged their undivided interest in the same real estate, amounting to fifteen-twentieths thereof, to secure [548]a repayment of the same money. The present action is brought to foreclose the mortgages. Plaintiff was nonsuited as to the cause of action based upon the mortgage given by the guardian of the minors, and judgment in his favor was rendered upon the mortgage given by Mrs. Bryan and her adult children. He now appeals from that portion of the judgment based upon the nonsuit.

The question here presented involves the validity of the mortgage given by the guardian under the order of the court. To support the claim of the invalidity of the mortgage, it is first insisted that the petition for permission to mortgage addressed to the court is void upon its face. By this petition the court is asked to order a loan of $10,000, and the various items going to make up this sum total are set forth in detail, as, for example, an item of $5,000 claimed to be due the guardian, as money expended by her in the care, support and maintenance of the minors, and which, it is alleged, is a charge against their estate. There is also an item of $2,500, which, it is alleged, is required to pay off a mortgage then resting on the property, which mortgage was given by the father of the minors during his life. It becomes unnecessary to enumerate the other items alleged in the petition going to make up the sum total of $10,000, although it may be said they include costs of the proceedings in guardianship "and an estimated attorney’s fee. Upon the hearing the court made an order allowing the guardian to negotiate a loan of $9,500. This attack by respondents upon the validity of the proceedings leading up to the mortgage is essentially a collateral attack, and for this reason those proceedings must appear to be void on their face or the attack can avail nothing.

What particular facts are essential to be set forth in a petition to allow a mortgage to be given, in order to give a court jurisdiction to make an order thereon, we will not here decide, for it is not necessary. Even if it be conceded that in the present case some of the items set forth in this petition, going to make up the sum total, were not a legal charge against the estate of the minors, yet, upon the other hand, there is no doubt but that some of these items were a proper charge against that "estate, and this fact gave the court jurisdiction of the proceeding, and, upon proper notice given of the hearing, power to make the order it did make. For this reason the order here made is not void upon the ground of a

Howard v. Bryan

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