By the Court, Sanderson, J.:
Action to recover an undivided half of a certain parcel of land situated in San Mateo County, being part of the Rancho Canada de Raymundo, which was granted to John Coppinger, plaintiff’s father, in 1840, by Juan B. Alvarado, then Governor of California, and confirmed and patented by the United States to the plaintiff and her mother in 1859.
The case shows that John Coppinger, from whom the plaintiff claims as heir, died intestate in February, 1847, leaving him surviving the plaintiff, Manuela and Maria Juana Antonia, who were his only children and heirs at law, and Maria Louisa, his widow. That the plaintiff was born in May, 1847, subsequent to her father’s death. That Maria Juana Antonia died intestate, in February, 1850, at the age of seven years, leaving her mother, Maria Louisa, her heir at law, who subsequently, in September, 1850, intermarried with John Greer. That before the commencement of this action Greer and wife conveyed their interest to one O’Callaghan, who conveyed to one M. T. O’Conner, now deceased, and that the land in question is now in the possession of the defendants as tenants of Maria O’Conner, administratrix of the said M. T. O’Conner.
The answer of the defendants further shows that in December, 1850, the Probate Court- of the County of San Francisco, upon the application of John Greer, undertook the settlément and distribution of the estate of John Coppinger, and appointed Greer administrator and also guardian of the plaintiff. That- in the due course of administration the premises were regularly sold by Greer to O’Callaghan, and subsequently, on confirmation, conveyed by the former as *422administrator to the latter. The answer also shows that the land was sold by Greer as guardian of the plaintiff to O’Callaghan, by leave of said Court, for the purpose of raising means for the support and education of the plaintiff, and of prosecuting her claim to the Rancho Cañada de Raymundo before the tribunals of the United States Government for confirmation and patent. All of these proceedings are set out at length in the defendants’ answer, and it is claimed that if the title did not pass by reason of the proceedings of the Probate Court in the matter of the administration, yet by reason of the sale having been also made by her guardian for her benefit and the security and confirmation of her estate, she ought to be decreed to hold the legal title for the benefit of the heirs of M. T. O’Conner and compelled to convey it. It was also claimed at the trial on the part of the defendants that O’Conner had obtained title by virtue of a sale of the premises for taxes levied under the Revenue Acts of 1854 and 1857, while he was in the sole and exclusive possession. One Bassett purchased at the tax sale and in due course of law obtained a deed, and afterwards conveyed to one Stott, who afterwards and after the death of O’Conner, conveyed to his widow and administratrix, Maria O’Conner, lessor of the defendants.
To the matter in relation to the proceedings of the Probate Court and of Greer as guardian, the plaintiff* demurred on the ground that they were null and void for the want of jurisdiction in the Probate Court—John Coppinger having ' died in 1847, before the adoption of the Constitution of California, and the laws in relation to the settlement of the estates of deceased persons. The demurrer was sustained, and the ruling of the Court in that respect is made the principal topic of controversy here.
We agree with counsel for the respondent that it is too late to disturb the rule which was announced in Grimes v. Norris, 6 Cal. 624. That was the case of a testator who died in 1848, and the question was whether his will had to be probated under the laws of this State, and it was held in *423the negative, not by reason of any casus omissus, but by reason of the actual intent of the Legislature. This doctrine was approved by the Supreme Court of the United States in Adams v. Norris, 23 How. 358, and has been uniformly adhered to by this Court from the time of Grimes v. Norris until the present. (Tevis v. Pitcher, 10 Cal. 465" court="Cal." date_filed="1858-07-01" href="https://app.midpage.ai/document/tevis-v-pitcher-5433826?utm_source=webapp" opinion_id="5433826">10 Cal. 465.) If the statutes of this State have no application to estates of testators who died prior to their passage, by parity of reason the same is true of the estates of such as died intestate, for there seems' to have been no reason why any distinction should have been made; but be that as it may, it is clear that the Legislature made none. Hence the cases of Grimes v. Norris and Tevis v. Pitcher have ever since been considered as having established the broad proposition that the estates of persons who died prior to the passage of the laws in question, whether testate or intestate, whether leaving adult or minor heirs, were not within the operation of those laws, but the same were regardéd as having vested in the devisees or heirs under the Mexican law. Hence it was said in De la Guerra v. Packard, 17 Cal. 193, “ in our view of the rights and liabilities of the heirs under the Mexican system, we do not see upon what principle the estate was subjected to administration under our statute, and we are inclined to the opinion that whatever has been done in this respect must' be regarded as unauthorized and illegal.” That was the case of an intestate leaving infant heirs. So in Soto v. Kroder, 19 Cal. 97" court="Cal." date_filed="1861-07-01" href="https://app.midpage.ai/document/quivey-v-hall--huggins-5434833?utm_source=webapp" opinion_id="5434833">19 Cal. 97, it was again said : “ Francisco Soto having died in 1845, the heirs took the estate, and are proper parties to suits for the recovery of the premises. The statute, which gives the possession and control of real property belonging to intestates to their administrators until administration of the estate and distribution of the property are had, only applies to cases arising since the statute was passed.” So well settled had- the rule become, that when the present members of the Court came upon the bench it was considered no longer debatable, and it has been strictly followed since without discussion. (Downer v. Smith, 24 Cal. 114; *424People v. Senter, 28 Cal. 502" court="Cal." date_filed="1865-10-15" href="https://app.midpage.ai/document/people-ex-rel-vantine-v-senter-5435856?utm_source=webapp" opinion_id="5435856">28 Cal. 502; Wilson v. Castro, 31 Cal. 420" court="Cal." date_filed="1866-07-01" href="https://app.midpage.ai/document/wilson-v-castro-5436225?utm_source=webapp" opinion_id="5436225">31 Cal. 420.) Downer v. Smith, as to one of the parties, was a ease of infant heirs, but it was never suggested that it could for that reason be distinguished from the eases before it. These cases must now be regarded as establishing, beyond further controversy, the proposition that on the death of an intestate under the Mexican system, “ the heirs succeeded immediately to the estate and became personally responsible for the debts of the deceased,” irrespective of the question whether the heirs were adult or minor, and that no administration in the sense of the common law was needed or could be had at any time. It may be that the distinction for which counsel for appellant so learnedly contend should have been made, but it was not, and it is now too late to draw it. It is impossible to estimate the mischief which might result from a departure from a rule which for so long a time has been regarded by both the bench and the bar as finally settled.
The claim of the appellant, in this connection, that the probate sale, though void at the time it was made, has nevertheless been ratified and confirmed since by the Act of the 2d of April, 1866 (Statutes, p. 824,) is not tenable. That Act cannot be considered as having any application to estates which were never within the operation of our probate system. It must be interpreted by the light of that system and the judicial-interpretation which for years had been put upon it. It must therefore be understood as dealing only with the proceedings of the Probate Courts, so far as those proceedings have reference to estates within the operation of the probate laws as they then and had previously existed, and not with those which related to estates which had vested in the heirs or devisees under a former system, and over which those Courts never had any jurisdiction under the Constitution and laws by which they were created. Such being our view of the intent and object of the Act, we find it unnecessary, for the purposes of the present case, to inquire whether it is or is not repugnant to the Constitution.
We do not understand the defendants as claiming that the *425sale was ordered upon the petition of Greer as guardian, or that he acted in that capacity during any of the proceedings. It is not so expressly alleged, and we understand that reference to Greer’s guardianship is made more by way of makeweight than anything else.
So far as the defence rests upon the tax sale, it cannot be sustained. O’Conner was legally bound to pay the taxes. Such being the ease, he could not gain any advantage by allowing the land to be sold and buying it in himself, or by buying it from a stranger who bought at the sale. (Moss v. Shear, 25 Cal. 45.)
Judgment affirmed.