Kern v. Robertson , 92 Mont. 283 ( 1932 )

ON PETITION FOR REHEARING. Counsel for defendant contend that, since it is determined that under the facts disclosed by the record the doctrine of equitable conversion applies, and that upon the execution of the contracts the interest of Mrs. Kern was converted into personal property, and upon her death passed to her personal representative as personal property, the executor of her estate cannot maintain this action to quiet title to the lands in controversy.

While it is true, as pointed out in the opinion, that upon the execution of the contracts in question the beneficial interest in the lands passed to the purchasers, and under the doctrine of equitable conversion the interest of the vendor was converted into personal property, it is equally true that the naked legal title remained in the vendor, which she held as trustee for the vendees and as security for the purchase price remaining unpaid. Upon the death of Mrs. Kern, the naked legal title to the property passed to the executor, and, upon compliance by the purchasers with the terms of the contracts, the executor is required to convey the property free and clear of all clouds and encumbrances. In the event the full purchase price under the contracts is paid during administration, the executor, under order of court, executes the necessary conveyances. (Secs. 10268-10280, Rev. Codes 1921.)

Since, then, the executor held the naked legal title for the[4, 5] purposes pointed out, was he a proper party to prosecute the action to quiet title and thus remove the cloud upon the naked legal title caused by the sheriff's certificate of sale?

Section 9479, Revised Codes 1921, which was in force when the action was commenced, provides: "An action may be brought and prosecuted to final decree, judgment, or order, by any person or persons, whether in actual possession or not, claiming title to real estate, against any person or persons, both known and unknown, who claim or may claim any right, title, estate, or interest therein, or lien or encumbrance thereon, adverse to plaintiff's ownership, or any cloud upon plaintiff's title thereto, whether such claim or possible claim be present or contingent, including any claim or possible claim of dower, inchoate or accrued, for the purpose of determining such claim. or possible claim, and quieting the title to said real estate."

"A mere contract to convey land will not divest the vendor of his right to maintain an action to quiet title or remove a cloud therefrom when the legal title remains in him." (51 C.J. 176, and cases cited; Jones v. Nixon, 102 Tenn. 95, 50 S.W. 740;Jackson Mill Co. v. Scott, 130 Wis. 267, 110 N.W. 184; Langlois v. Stewart, 156 Ill. 609, 41 N.E. 177; Coel v. Glass, 232 Ill. 142, 15 L.R.A. (n.s.) 413, 83 N.E. 529.)

Defendant claims a right or interest in and to the legal title to the lands in controversy adverse to the executor's naked legal title; the sheriff's certificate of sale constitutes a cloud on the naked legal title held by plaintiff, as executor, and on his right to receive the payments under the contracts as well as his right to execute conveyances upon final payment under the contracts. In our opinion, under the provisions of section 9479, supra, the executor was a proper party to prosecute the action.

It is also contended that the record discloses that the[6] estate, for more than two years prior to the commencement of the action, was in a condition to be closed, and that, since the executor failed and neglected to close the same, any right to bring the action expired when the time for distribution of the estate expired.

Section 10139, Revised Codes 1921, provides that, unless it satisfactorily appears to the court that the rents, issues and profits of the estate for a longer period are necessary wherewith to pay the debts of decedent, or that it will probably be necessary to sell real estate for the payment of such debts, "the court or judge, at the end of the time limited for the presentation of claims against the estate, must direct the executor or administrator to deliver possession of all the real estate to the heirs at law or the devisees."

Clearly, the purpose of this section is to require the speedy termination of probate proceedings, but the fact that plaintiff may have been derelict in his duty and that the court did not require him to deliver possession of all real estate to the devisee within the time prescribed by statute cannot affect the right of plaintiff to prosecute this action.

Petition for rehearing is denied.

MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES GALEN, ANGSTMAN and MATTHEWS concur.