49 Cal. 497 | Cal. | 1875
1. The appointment of Weber as administrator with the will annexed, superseded per se all former administrations of the estate.
2. The proceedings in the Probate Court resulting in the sale made by Weber as administrator with the will annexed, were not defective in point of jurisdiction; and the other objections urged against the sale, even if they could have been maintained, should have been taken in the Probate Court or by appeal.
3. McCauley relies upon the sale made under the directions of the Probate Court, and in due course of administration, of the estate of Chabolla. The defendants, upon the other hand, claim through conveyances made by the heirs of Chabolla anterior to the probate sale, and a subsequent confirmation and patent from the United States Government, running directly to their grantors as such heirs.
It only remains, therefore, to consider whether the Statute of Limitations, relied upon by the defendants, is effectual to bar the relief awarded to McCauley by the decree, and we think that this question must be answered in the negative. McCauley’s possession of the premises, as a tenant in common with the defendants, had never been disturbed; no ouster had occurred, and no acts of exclusion upon the part of the defendants, equivalent to an ouster, had taken place.
It is apparent that, under such circumstances, the Statute of Limitations has no application. A person all the while in possession according to his right, cannot, while holding the possession, be divested of that right in favor of another. If authority be needed in support of a proposition so self-evident, it may be found in Love v. Watkins, 40 Cal. 547.
In this view it becomes unnecessary to inquire whether the equities of McCauley are to be considered as having been alleged in the complaint as originally filed, or only at a subsequent period in the progress of the cause, for in either case the Statute, of Limitations would not avail the defendants.
Judgment affirmed.