66 Cal. 105 | Cal. | 1884
Lead Opinion
-Ejectment, to recover an undivided interest in a portion of fifty-vara lot No. 145, in the city and county of San Francisco.
From the unchallenged findings of the court, it appears that William Paty, on the 13th of November, 1849, acquired title to an undivided interest in the premises in dispute. After his acquisition of title he died, on the 14th of February, 1850, in the city of San Francisco, intestate, and leaving surviving him as his legal heirs, Martha Ann Paty, his widow, and three children, Ellen D., Charles M., and Francis W. Paty. Of these children, Charles M. died in the year 1857, a minor, unmarried and without issue. From Francis W. the plaintiffs claimed to have derived his title to the premises and they were, at the commencement of the action, vested with all the right, title and interest in said premises, which the said Francis W. inherited as the heir-at-law of his deceased father and brother. Upon the case made by them they were therefore entitled to judgment for that interest against the defendants in possession, unless the latter showed a superior right to the possession.
I. As to the first source: William Paty died February 14th, 1850, after the organization of the State government, and before there was any legislation by the State, regulating the administration, descent and distribution of the estates of persons dying intestate within the State. His estate, therefore, descended and was subject to the operation of the Mexican law in existence at the time of the cession of California to the United States. As was said in Ryder v. Cohn, 37 Cal. 87: “ It is a well-known principle, that upon a conquest or cession of a foreign territory, the laws of the former sovereign will prevail, until they are abolished or supplanted by others enacted by the new sovereign.”
And the Constitution of 1849 embodied the same principle. Section 1 of the schedule provided, “ That * * * all laws in force at the time of the adoption of the Constitution, and not inconsistent therewith, shall continue until altered or repealed by the legislature, as if the same had not been adopted.”
No attempt was made to alter or repeal the Mexican law upon the subject of descent and distribution of estates of de
Ryder v. Cohn, supra, is not in conflict with those cases. In that case, the questions of title to the property in controversy in the case arose out of a final j udgment founded upon proceedings which were had wholly in the court of the first instance. The estate of the intestate had never been in the probate court. It is true that a majority of the court did hold that the court of
Followed, however, to its logical conclusions, that decision would result in establishing the proposition that the court of first instance, before the code of laws enacted in 1850 went into effect, had jurisdiction of the estates of intestates; and that the probate court, subsequently established and organized under the Code of 1850, had not, unless jurisdiction of such estates was conferred upon it by the code. But, although the Constitution of 1849 provided for the removal of all cases pending in tribunals under the Mexican law to courts to be created by the legislature (§ 2, schedule), no provision was ever made by the legislature in carrying out the provisions of the constitution in that regard, for the removal of proceedings in estates pending in the court of first instance to the probate court. The courts of first instance and alcalde courts were suspended by an act passed on the 28th of February, 1850 (Stats. 1850, p. 77), and by the provisions of that act, “ all cases and proceedings pending before courts of first instance and alcalde courts ” were made transferable to the newly created district courts and justices’ courts. But neither in that act, nor in the subsequent act of April 22d, 1850, was there any provision made for the transfer of causes or proceedings pending in those courts to the probate court. The probate court, therefore, acquired no jurisdiction of the estate of William Paty, deceased, although, as a matter of fact, the records and papers in the administration of the estate were sent to and deposited in the probate court.
2. As to the second source from which defendants claim title, the deed executed by the mother of Francis W. Paty, under the act of the legislature, was void; because, although she had been appointed guardian of the person of the minor by the probate court of the State of Massachusetts, and by the Supreme Court of the Hawaiian Islands, she had never been appointed guardian of his person and estate by the probate court
3. As to the third source, the deed from John Paty was ineffectual to transfer the title of Francis W. in the estate of his deceased father; because, although there was, at the time of the acquisition of the title to the property by William, a partnership between him and his brother John, the grantor, under the firm name of J. & W. Paty, in which they recognized each other as equal partners in all their business transactions, and the partnership continued until it was dissolved by the death of William, yet the court finds that the deed was not executed by John in settlement of the affairs of such copartnership, nor for the purposes of a settlement thereof, nor to convey the property in controversy as surviving partner of the firm ; and “ that the plaintiffs purchased and acquired the rights of Francis W. in the premises for value, and without notice of any co-partnership interest of J ohn Paty in the premises, or of any co-partnership claim thereto by any one.”
Assuming that John Paty, as the surviving partner of William, had an interest in the land purchased by the latter, it was a mere equity, which was subject to be discharged by a transfer of the legal title to a purchaser for value and without notice. (1 Leading Cases in Equity, White & Tudor, 287; Smith v. Yule, 31 Cal. 180.) And when the plaintiffs acquired the title of Francis Paty, as found by the court, they took it against any equity existing in J ohn Paty as the surviving partner of William, and held it free from all trusts of which they had no notice at the date of their purchase. Therefore, the title acquired by them was not affected by the proceedings in the probate court on the estate of William Paty, deceased, nor by the deed executed by the mother of their grantor, Francis W. Paty, nor by the deed of John Paty, the brother of the intestate (McNeil v. Polk, 57 Cal. 323) ; and they became tenants in common with the defendants in possession.
4. As to the statute of limitations, the defendants pleaded: “That said plaintiffs ought not to have or maintain this action,
Section 1806 prescribes three years next after the termination of the guardianship of a minor for a recovery by the minor or his grantee of real estate sold by the guardian. That section has no application to this case, because there was no guardian, and no sale by a guardian, appointed by a probate court in this State. Section 1573 prescribes three years next after sale of an estate by an executor or administrator, under the provisions of the probate law, for the recovery of the real estate sold; but that section is not applicable, because the premises in controversy were not subject to sale and were not sold under its provisions. (Harlan v. Peck, 33 Cal. 515.)
The other sections relate to the bar of the statute of limitations of five years. But Francis W. Paty was born on the 6th of December, 1845, and the action in hand was commenced on the 4th of December, 1871. So that under section 328, C. C. P., his right was not barred. Besides, as the plaintiffs and the defendant were tenants in common of the land, the defendants are presumed to have held the possession for the benefit of themselves and the plaintiffs. There is no finding that this possession became adverse to the plaintiffs at any time, until the defendants refused to let the plaintiffs into possession, on their demand made to be let in, just before the commencement of this action.
Upon the findings, the plaintiffs were entitled to judgment.
Judgment reversed and cause remanded, with directions to the court below to enter judgment upon the findings, in favor of the plaintiffs.
Concurrence Opinion
-No sale of the interest of the deceased William Paty in the real estate in question was ever made by order of the court of the first instance, and as the legislature of the State made no provision for the transfer of proceedings relating to the administration of the estates of deceased persons from the courts of first instance to the court of probate, provided for by the Probate Act of April 22, 1850, the probate court under that act acquired no juris
We concur in the judgment.
Hearing in Bank denied.