I dissent both from the views and the conclusion declared by the majority of the court in the above-entitled cause, and adhere to the views and conclusion heretofore declared in the opinion found in 62 Pac. Rep. 459.
I cannot agree to the construction given by the court to that portion of section 1578 of the Code of Civil Procedure which provides: "Jurisdiction of the court to administer the estate of such decedent, minor, or incompetent person shall be effectual to vest such court and judge with jurisdiction to make the order for the note or notes and mortgage, and such jurisdiction shall conclusively inure to the benefits of the mortgagee named in the mortgage, his heirs and assigns." To my mind, it is plainly evident that the legislature intended by this provision of the statute to place the order of the court allowing the borrowing of money and giving of a mortgage, beyond collateral attack upon the ground of lack of jurisdiction in the court to make it. I see nothing in the provision which in any way indicates *Page 269 an intention upon the part of the legislature to enact it for the purpose declared in the main opinion of the court. If that were the intention, then, certainly, the clause of the provision which reads, "such jurisdiction shall conclusively inure to the benefit of the mortgagee named in the mortgage, his heirs and assigns," is mere surplusage, and means nothing.
Neither can I agree with that portion of the opinion which holds that the order of the court giving the guardian authority to make the mortgage is void, after the concession made therein that five thousand dollars of the amount for which the mortgage was given was a debt against the minors, and a debt for which the court could have made an order for the mortgaging of their estate. If the court in this proceeding had jurisdiction to make an order for a mortgage of five thousand dollars, I know of no principle of law which would declare an order for a mortgage of nine thousand five hundred dollars void in its entirety. I believe in such a case, according to every principle of law, the mortgage should be held valid to the extent of five thousand dollars, at least. The law is settled in this state, that where a defendant has been convicted, and sentenced to state prison for a period, for example, of ten years, when the greatest penalty which could be inflicted under the statute for the offense of which he has been convicted was five years, that a judgment of that character is not void in its entirety, but simply void for the excess; and this court has repeatedly held that a defendant under those circumstances is not entitled to his discharge until the expiration of the term of imprisonment fixed by the statute. If this be the rule in criminal cases as to the jurisdiction of courts to render judgments, I see no reason why the same principle should not apply to judgment in civil cases.
Aside from the foregoing conclusions, I am firmly convinced that this order granting the right to mortgage the minors' property for nine thousand five hundred dollars is valid in its entirety. In the petition for the order it is set forth that "the costs and expenses of caring for, maintaining, supporting, and educating the said children from the first day of November, 1885, to the first day of April 1893, is five thousand dollars." Again, under the head of charges of administration we find items amounting to $4,570. These items include a family allowance for said minors, attorney's fees, guardian's commissions, and other expenses. Expenses *Page 270 of administration and debts created by the minors are items expressly mentioned in the statute for which an order to mortgage may be given. This proceeding being essentially a collateral attack upon the order of the probate court, it must be assumed that the $5,000 item for the care, support, and education of these minors is a valid item, and that the expenses of administration in the amount of $4,570 is also a valid item. We thus have, upon the face of the petition, valid items of expenses set forth, justifying an order for a mortgage to the full amount covered by the order made in this case. It is apparent, for these reasons, that the court had jurisdiction to make the order here involved. It may be conceded for present purposes that the court had no power to make an order to mortgage the minors' property for the payment of the security given by Mrs. Bryan to Howard, nor that it had any authority to make the order for the mortgage to secure money to pay the Rider lien. Yet, even after this concession, there is still upon the face of the petition sufficient facts to justify the court in making an order to mortgage the minors' interest for the sum of nine thousand five hundred dollars. This being so, it will not be presumed upon this collateral attack, in order to defeat and invalidate the mortgage given in this case, that the court made the order for purposes not recognized by the statute. If any presumptions are to be indulged in as to this order, it will be presumed that it was made for valid purposes.
It may be further suggested that no harm can possibly come to minors by reason of the construction here given to orders of the character of the one involved in this proceeding. Upon the other hand, the construction given this order by the majority of the court does the gravest injustice to the mortgagee in this case. It will often be a close question whether or not a certain particular item of charge will come within the designation of debts or expenses of administration; and it would be a gross injustice if a mortgagee is required to decide this question at his peril. Indeed, it would seem, if this be so, that few mortgages would ever be given under the section of the code here involved. As before suggested, there is no hardship upon a minor in a case of this character. He secures the money; the guardian is responsible to him for it; it can only be expended upon the order of the court for his benefit. If the guardian appropriates it to any other purpose, he will be liable upon his *Page 271 bond; and here, as an illustration of that principle, if the money secured by this mortgage has not been expended for the benefit of the wards, it still is in the possession of the guardian, or the guardian is liable for its misappropriation. The order allowing the mortgage to be given is in no sense resadjudicata as to what claims are valid claims against the estate of the minor.
For the foregoing reasons the judgment and order should be reversed and the cause remanded.