Freeman v. Rahm, 58 Cal. 111

Freeman v. Rahm

58 Cal. 111 | Cal. | 1881

Lead Opinion

Myrick, J.:

This action was brought to restrain the defendant as sheriff from proceeding to sell certain real estate on an execution against J. R. Campbell. One W. J. Campbell died seised of real estate, to an undivided "eighteenth of which said J. R. Campbell became entitled by succession. On the 11th of December, 1877, while the estate of W. J. Campbell was in process of administration, said J. R. Campbell sold to plaintiff all his interest in the estate of said W. J. Campbell, deceased, received the full amount of the purchase money therefor, and executed and delivered to plaintiff a full and irrevocable power of attorney to receive his distributive share of the estate, which power was acknowledged and recorded before October 13tli, 1879; no deed, however, was then executed. On the 13th of October, 1879, after due proceedings and notice, a decree of distribution of the estate was made by the Probate Court, by which decree an undivided one eighteenth of said estate was distributed to said J. R. Campbell. No mention of plaintiff, or the purchase by him, or of the power of attorney was made in the decree; but the Court in the decree recited that J. R. Campbell was entitled to an undivided one eighteenth, and distributed the same to him in the usual form. On or about the 31st day of March, 1880, one Perry commenced an action in the Superior Court against said J. R. Campbell, and on that day caused the interest of said J. R. Campbell in said premises to be attached. On the 6th day of April, 1880, said J. R. Campbell executed to plaintiff a deed *114of all his interest in certain described premises, which deed contained the statement that “the interest hereby conveyed is the undivided one eighteenth of all the real estate above described, as per decree of the Probate Court of said Yolo County, made and entered in the settlement of the estate of W. J. Campbell, deceased, on the 13th day of October, 1879.” This deed was recorded April 24th, 1880. On the 12th day of April, 1880, in the said action, said Perry recovered a judgment against said J. R Campbell for four hundred and thirty-five dollars and sixty-five cents and costs, and on or about the same day caused an execution to be issued on said judgment and placed in the hands of the defendant, Sheriff of Yolo County. Under such execution the defendant was proceeding to sell, and this action was brought to restrain the sale. Neither plaintiff nor J. R. Campbell was ever in the actual possession of the premises. The Court below in this action rendered judgment for defendant.

I. The plaintiff, if he had any rights, is estopped by the decree of distribution in the Probate Court from asserting title to the premises. Upon the final settlement of the accounts of an executor or administrator (§ 1665, Code Civ. Proc.), the Court must proceed to distribute the residue “ among the persons who by law are entitled thereto.” Upon distribution, if any of the heirs, legatees, or devisees have conveyed their shares to other persons (§ 1678), such shares “ must be assigned to the person holding the same,- in the same manner as they otherwise would have been to such heirs, legatees, or devisees.” According to § 1666, “in the decree or order the Court must name the persons and the proportions or parts to which each shall be entitled.” By § 1908 it is provided: “The effect of a judgment or final order in an action or special proceeding before a Court or Judge of this State, or of the United States, having jurisdiction to pronounce the judgment or order, is as follows:

“ 1. In case of a judgment or order against a specific thing, or in respect to the probate of a will, or the administration of the estate of a decedent, or in respect to the personal, political, or legal condition, or relation, of a particular person, the judgment or order is conclusive upon the title to the thing, the *115will, or administration, or the condition or relation of the person.”

From these provisions of the law, it follows, if plaintiff had any right under his alleged purchase or power of attorney, he should have asserted that right before the Probate Court, and had the share claimed by him distributed directly to himself. The Probate Court had jurisdiction of the administration of the estate, and a part of the administration was the ascertainment of the persons entitled to the residue, and its distribution to them. The plaintiff had notice of the proceedings of distribution; he had his day in Court. The decree of the Court assigning the share to J. R Campbell is conclusive. Non constat but the power of attorney and all claim of plaintiff to the property was rendered back to J. R Campbell before the decree.

II. The power of attorney gave to plaintiff no right to take distribution to himself; it did not purport to he, and was not a transfer of the title. Any act that plaintiff might have performed under it would have been as attorney in fact of Campbell, not as his grantee. There was no instrument in writing by which any sale, or contract of sale, or declaration of trust, was evidenced.

Judgment and order affirmed.

Sharpstein, J., and Morrison, C. J., concurred.

Concurrence Opinion

Thornton, J., concurring:

I concur in the judgment, on .the. ground that the case made by the plaintiff is not one proper for an injunction. I do not concur in any of the grounds on which the opinion of the Court rests the conclusion reached in it.