125 Cal. 639 | Cal. | 1899
Action for damages. The court found the following facts: Under the provisions of the act of March 6, 1889 (Stats. 1889, p. 70), for laying out, opening, and extending any street et cetera, and to condemn and acquire any land necessary or convenient for that purpose, the city council of the
It is admitted that the administrator took no proceedings in the probate court to sell the property to the city, and obtained no order to convey it. All parties agree that his deed was without authority and is void. The evidence shows that Earl, the sole heir of deceased, plaintiff’s grantor, had knowledge of the conveyance by the administrator and the purpose for which it was given; he had knowledge that the consideration paid was used by the administrator in paying debts and expenses of administration, and his attorney, the present plaintiff, was in court at the time the final account was heard as Earl’s representative, and he examined the items of the account. Plaintiff testified: “We looked at the account and had no objection to it. We wanted to see what part of the six hundred and twenty dollars was paid.” When asked to what extent he represented Earl he said: “To the extent I have stated. We simply said that we had no objection to that account. The court asked if we had looked at this account, and we said yes, and that we had no objection.” And, again, he said he “consented that this account be allowed.” The account shows receipts, including an item of six hundred and twenty dollars “cash received Los Angeles city damages to Reid lot for improving street,” two thousand and twenty-two dollars and eighty cents, and disbursements two thousand and four dollars. There was a report accompanying the account explaining this item of six hundred and twenty dollars, and showing a balance of eighteen dollars and eighty cents. The account
So far as we can see, it is a simple action for damages done by the city under a deed which it is conceded has no validity. The right of the city to retain the possession of the land is not involved.
The city was a trespasser, and as such became liable in damages. It paid in full, however, all the court found that the land' was injured, and the only question is whether it should pay a second time.
Appellant’s position is, that the payment by the city was under a mistake of law, and was a voluntary payment to the administrator and cannot be recovered from him nor from one to whose benefit he applied it, by way of counterclaim or setoff; that there is no ground for estoppel in the case against the heir or his grantee, and there is no right of subrogation; that the decree of distribution, until set aside, is a complete estoppel of record against the city.
Whatever may be the law in this state as to the title to the land and the right of the city to withhold possession from plaintiff—questions not now involved—we think the plainest principles of equity and good conscience should prevent plaintiff from recovering damages after having once had the benefit of full payment. When the land was damaged it was part of the estate; the city became at once liable to the estate, but we cannot see that because the liability arose through mistake of law and through the unauthorized act of the administrator, the claim for damage would be different from a claim which would have arisen if the city had proceeded without the knowledge or consent of the administrator; the claim became an asset of the estate, and it was the duty of the administrator to collect it, and he did so, as the representative of the heir, and accounted for the money to the estate, and used it to pay debts
We advise that the judgment and order be affirmed.
Haynes, C., and Gray, 0., concurred.
For the reasons given in the foregoing opinion the judgment and order are affirmed.
McFarland, J., Temple, J., Henshaw, J.