120 Cal. 589 | Cal. | 1898
Action to recover possession of certain lands ¡situated in Siskiyou county, title to which was at the commence-
It appears that the lands in question were improved by the erection of dwelling-house, barns, fences, a small orchard, and .about thirty acres of alfalfa, and some portions were under cultivation and were in the possession and occupancy of Manuel Cardoza. He died in 1889, and in January, 1890, Joseph Cardoza was appointed administrator of his estate. The land in controversy was returned by Joseph Cardoza in his inventory as belonging to the estate of Manuel Cardoza, deceased. Joseph Cardoza died before closing the administration (but when does not appear), and Thome Cardoza was appointed administrator in his stead. After filing his inventory, to wit, on January 20, 1890, •Joseph Cardoza applied to the railroad company to purchase the land in question. Subsequently, the interest of the estate in the premises was sold by order of the probate court after due proceedings had, and defendant became the purchaser and went into-possession under the administrator’s deed, and still is in possession. On October 31, 1894, plaintiff applied to the railroad company to purchase the land, and on February 11, 1895, the ■company, through its land agent, Mr. William H. Mills, entered into a written contract to sell the land in question to plaintiff for the sum of eight hundred and eighty dollars, and received from him the first installment in money and one year’s interest on the unpaid balance. Plaintiff claims under this contract, and defendant claims under the application made by Cardoza and his purchase from the Cardoza estate.
1. Appellant contends that the estate of Manuel Cardoza never .acquired any interest in the land, and therefore no -interest passed to respondent by the administrator’s sale. It is true that Joseph Cardoza made application to purchase in his own name, and the application nowhere shows that it was for the benefit of the estate. But when he applied to purchase the land he was administrator and was in possession of the land as such administrator, and had included it in his inventory as part of the estate of the intestate. Whether this interest was sold to respondent by Joseph or by Thome as administrator does not appear, but it was so sold by one of them and before appellant made his application
2. Appellant contends that all the rights of Joseph or the estate under the contract of 1890 had terminated, and in support of the contention appellant quotes from this contract as follows: “Permission to assign the rights acquired under the application will be given if deemed advisable by the land agent, but all assignments made without such permission first having been obtained will be construed to be an abandonment of all rights conferred by the application.” This contention rests upon the proposition that, if there was a sale and assignment of the contract as well as all interest in the land, it resulted in the abandonment of the contract, and appellant had a clear right to purchase.
The case of Boyd v. Brinckin, 55 Cal. 427, is closely analogous to the one before us in both its. facts and the principles of law
It is advised that the judgment and order be affirmed.
Searls, C., and Belcher, C., concurred.
For the reasons given in the foregoing opinion the judgment and order are affirmed.
McFarland, J., Temple, J., Henshaw, J,