125 Cal. 253 | Cal. | 1899
This is an action to quiet title to the undivided half of a certain piece of land described in the complaint. The plaintiffs are the children and heirs-at-law of John A. Campbell, deceased, who died May 21, 1873, seised in severalty of the whole of said tract of land, and it is conceded that the plaintiffs, as heirs of said decedent, are the owners of the undivided half of the land sued for, unless their title thereto has passed, either by virtue of a probate sale made in the administration of the estate of the decedent in 1874, or has been lost to them by the operation of the statute of limitations. Judgment in the lower court went for plaintiffs, and defendants appeal from the judgment and from an order denying their motion for a new trial.
Appellants claim title, first, as purchasers under the foreclosure of a mortgage made to M. J. Drais, now deceased, by one Church, and contend that Church had title through mesne conveyances by virtue of a probate sale of the property in 1874. We are satisfied, however, that the probate sale was' invalid and void. The petition under which the sale was made was filed on the seventeenth day of January, 1874, and is as follows: “The petition of C. A. Campbell, administrator of the estate of said deceased, respectfully shows that heretofore, to wit, on the fourteenth day of October, 1873, petitioner filed his petition praying for an order of sale of certain real estate, and showing the necessity therefor; that owing to a mistake in the inventory on file, the real property set forth in said petition did not belong to said estate; that therefore the order heretofore granted has become ineffectual; that a new inventory has been filed correctly describing the real estate belonging to said estate; that the facts which constitute the necessity for selling the real estate belonging to said estate still exists and are as set forth in said former petition, to which reference is hereby made, and petitioner prays may be taken as a part hereof; that a hotel constitutes a portion of the improvements on the real estate
The court below correctly held that the action was not barred by sections 318, 319, 320, and 1573 of the Code of Civil Procedure, or either of them. The sale under the probate order was made to one Hewitt, to whom in March, 1874, an administrator’s deed was given, which purported to convey to Hewitt in severalty the whole of the tract of land of which the undivided half is involved in this action. Hewitt held and occupied the land for a few days, and on March 11, 1874, conveyed the same by deed in severalty to one Cross, who held and occupied the same until February, 1876, when he conveyed the land by deed purporting to convey the whole in severalty to one Church, who at that time entered into the possession of the land, and has been in possession ever since. While Cross was in possession he allowed the widow of John A. Campbell, deceased, to build a house upon a portion of the land and to occupy it with her minor children, and in 1876 Church married the widow, and the children continued to live on the land with Church and their mother during and after their minority. They were raised and treated by Church substantially as if they had been his own children. Perhaps the evidence does not quite warrant the finding of the court that during all this time Church recognized the children as owning an undivided one-half, and held possession as a tenant in common with them. It is probable that for a period exceeding the statutory limitation of five years Church thought that he owned the land in severalty and treated it as if he so owned it. During most of that time, however, the plaintiffs were minors. Sometime between 1886 and 1890 Church told at least one of the plaintiffs that they, the children, had an interest in the property, and in 1S90, and before the execution of the mortgage to Drais, under which appellants claim, he said to all the plaintiffs that they owned one-half.
The money which Hewitt paid for the land at -the original administrator’s sale was used partly to pay off debts of the estate, and there was a residue which was distributed, and a part of the money so distributed was received by the plaintiffs; and it is contended by appellants that this fact estops the plaintiffs from bringing this suit, and that, at all events, they cannot maintain the suit while retaining that money. Whether minor heirs who are merely passive during the administration of an estate, and enter, themselves, into no contracts, are bound to restore money which comes to them upon a void sale, is a question not necessary to be here determined (see Hill v. Den, 54 Cal. 6), for this principle would not apply here; there is no reason why the money, under any view of the law, should be paid to these present appellants, and there are no elements of estoppel here because Drais took his mortgage having knowledge
The judgment and order appealed from are affirmed.
Henshaw, J., Harrison, J., Garoutte, J., and Van Dyke, J., concurred.
Rehearing denied.
Beatty, C. J., dissented from the order denying a rehearing.