61 Cal. 160 | Cal. | 1882
This is an application by petitioner to the Probate- Court of the City and County of San Francisco under Chapter IX
The order is appealable. (C. C. P., § 969, Subd. 5.) The conveyance there mentioned is not, as contended by respondent, a conveyance on sale and partition. The section referred to, in our opinion, authorizes the appeal.
There is a sufficient undertaking on appeal (C. C. P., § 970) and the matters are properly brought before us by bill of exceptions. (C. C. P., §§ 646-658, 670,1713.) The petition of respondent shows, among other matters, that the administrator of Corwin, who is proceeded against, before the petition was filed, had made a lawful conveyance to one E. J. Baldwin, whereby the title (referring to the title to the real estate for which a conveyance is sought by the proceeding), has passed to Baldwin. Baldwin is not a party to the proceeding, and could not have been made a party to it in the Probate Court. The statute makes no provision for making him a party. Under these circumstances the petitioner was not entitled to a decree.
The proceeding is one for a specific performance of a contract in the Probate Court. It is so spoken of in Code of Civil Procedure, Section 1602. Under such circumstances a Court of equity would not decree a specific performance. Before proceeding to a decree such Court is always careful to have all parties before it who have a right to be heard, as did Baldwin here, so that full and complete justice might be done. It was not the intention of the statute to vest in the Probate Court more extensive power than was administered by a Court of equity. This view is sustained by Section 1602 of the chapter of the Code of Civil Procedure above referred to.
The order is reversed, and the cause remanded, with directions to dismiss the petition without prejudice, under the section last referred to.
