Ryder v. Cohn

| Cal. | Jul 1, 1869

Lead Opinion

By the Court, Crockett, J. :

The two principal questions presented by this appeal are, first, whether the title of the plaintiff, founded on the sale by the administrator of the real estate of Henry D. Johnson, deceased, is valid, or whether the alleged administration and all the proceedings thereunder are absolutely void; second, whether, conceding the administrator’s sale to have been void, the heirs at law have ratified it by accepting a part of the purchase money for which it sold.

The administration proceedings were commenced before the Alcalde in 1849, and were transferred to and completed before the Court of First Instance early in 1850. The validity of these proceedings is attacked on the ground, first, that neither the Alcalde nor the Court of First Instance had any jurisdiction in matters of probate; second, that if these Courts had any lawful jurisdiction in such cases, neither of them acquired any jurisdiction in this case, either of the subject matter of the estate or of the persons of the heirs at law, because the petition for the letters failed to disclose the necessary jurisdictional facts, and no notice of the application, either for the letters of administration or the order of sale, was given or attempted to be given, in any form, to the heirs at law.

If the validity of these proceedings were to be tested by our present Probate Act, they would be held to be void, without hesitation, on both the grounds stated. But they must be tested by a wholly different standard. The state of affairs which existed in California in 1849 and in the early part of 1850 is without a precedent in the history of civilization. We had just acquired the country by the treaty of Guadalupe Hidalgo; and the discovery of gold in such profusion had caused a sudden and vast influx of population from all parts of the world. California immediately acquired immense importance in the eyes of all civilized nations; and it was anticipated that she would speedily be admitted as a State into the American Union, and would enact her own laws. In view of this contingency, Congress failed to provide for organizing it into a Territory, with suitable laws for its government; and in September, 1850, it was admitted as a State into the Union, under a Constitution previously ratified by the people. Prior to this event, however, the first Legislature, under the Constitution, had assembled in 1850 and passed a code of laws for our government, which went immediately into operation. But from the time of the cession up to the period when these laws took effect, we were practically without legislation and without any well defined system of law. And yet the public exigency was such, that in order to avoid a state of the most dire confusion, and to escape a condition of complete anarchy, it was indispensable to the preservation of order and the protection of life, liberty, and property, that tribunals should be established by the consent, or at least with the acquiescence of the people, for the administration of justice in some form. It is a well known principle that upon a conquest or cession of foreign territory the laws of the former sovereign will prevail until they are abolished or supplanted by others enacted by the new sovereign. Acting on this familiar legal proposition, the people and the military authorities then in charge here attempted to carry it into execution; but their efforts in that direction were necessarily crude and imperfect, both on account of their ignorance of the laws and the forms of procedure which had theretofore prevailed, and because, also, of the inherent difficulty of originating and putting into operation the different tribunals which were necessary for the administration of justice in some form. In the absense of some legitimate head of the proposed de facto Government, the military officer then in charge of .this department of the public service assumed to act as such, in order to put into operation the crude legal machinery which the exigency demanded. Hence we find that the Commanding General appointed Judges, Alcaldes, Prefects, Sheriffs, and Rotaries; superseded or removed them; regulated municipal government; authorized and vacated elections; promulgated regulations which had the force of law; and fixed the fees of public officers. This exercise of authority was acquiesced in by the people, as their only refuge from disorder and anarchy; and the judgments of the Courts thus established were respected for the same reason. By the judgments of these Courts criminals were punished; property was attached and sold; large sums of money were collected under execution; numerous vessels were libeled; real estate, now of immense value, was sold at forced sale to innocent purchasers in good faith, and the estates of deceased persons were managed, administered upon, and settled. The functionaries who thus administered justice, after a crude fashion, made little or no pretension to any knowledge of the Mexican or civil law, and did not attempt to follow the forms of procedure which that law prescribed. On the contrary, they generally adopted the common law forms; and their records exhibit a clumsy effort to administer what little they knew of the civil law, by means of common law proceedings, If tested by the rigid and inflexible rules of the common law, or by any strict interpretation of the civil law, it is questionable whether any judgment over rendered by these Courts could stand. To say nothing of the tenure by which they held their offices, their proceedings were of so summary a character, and often so repugnant to the well established principles which regulate the administration of justice in other countries, as almost to excite our special wonder, at this day, after the lapse of twenty years. We are, therefore, in this class of cases, reduced to one of two alternatives, to wit: we must either treat the judgments and proceedings of these Courts, however informal, as valid and operative, under the anomalous condition of affairs which then existed, of we must subject them to the rigid tests by which the validity of judicial proceedings is determined in other and older communities. When examined in the light of the latter rule, it is probable but few, if any, judgments ever rendered by the Court of First Instance would stand the test of judicial scrutiny. ¡Nearly every forced sale of real estate made under its process would be liable to be set aside as rendered on a void judgment; almost every man convicted and punished by it for crime would be entitled to his action for damages; and many innocent persons might be compelled, to surrender their estates, acquired on the faith of judicial proceedings which transpired twenty years ago, and which, at the time, were universally recognized as valid proceedings of the only Courts which existed in the country.

We deem it to be our duty to adopt the former alternative, and to hold the judgments of these Courts, and the titles acquired under them, to be valid, notwithstanding they might be void if tested by the strict rules of the common law. They do not purport to be proceedings at common law, and their validity cannot, therefore, be tested by the principles applicable to that system; nor are they, in any strict sense, proceedings under the civil law, but a sort of judicial anomaly, having some of the features of each, without the distinctive character of either. Nevertheless, the judgment of the Court of First Instance was the judgment of a de fado Court, exercising general and unlimited jurisdiction in civil cases and in matters of administration on the estates of deceased persons. It was the only Court then in existence in California exercising these functions, and its authority was universally acquiesced in and respected by the people. Being a Court of general jurisdiction, its judgments, even if tested by the common law rule, would be upheld, unless it appeared affirmatively from the record that it had not acquired jurisdiction of the parties in interest. (Hahn v. Kelly, 34 Cal. 391" court="Cal." date_filed="1868-07-01" href="https://app.midpage.ai/document/hahn-v-kelly-5436559?utm_source=webapp" opinion_id="5436559">34 Cal. 391.)

It does not appear affirmatively from the record in this case that the Court had not acquired jurisdiction of the parties in interest. For aught that appears in the record, the heirs at law may have had due notice of the proceedings; and in Hahn v. Kelly we held that in this respect the record cannot be impeached in a collateral action by proof aliunde. But the appellant claims that it appears from the record that the Court had not and could not have acquired jurisdiction of the subject matter of the proceeding, because, he urges, it has been settled by prior adjudications of this Court that, under the Mexican system, there could be no grant of letters of administration on the estate of a deceased person—that such a proceeding was unknown to the Mexican law. The decisions relied upon to sustain this position are: Grimes v. Norris, 6 Cal. 624; Tevis v. Pitcher, 10 Cal. 465" court="Cal." date_filed="1858-07-01" href="https://app.midpage.ai/document/tevis-v-pitcher-5433826?utm_source=webapp" opinion_id="5433826">10 Cal. 465; De la Guerra v. Packard, 17 Cal. 193; Soto v. Kroder, 19 Cal. 97" court="Cal." date_filed="1861-07-01" href="https://app.midpage.ai/document/quivey-v-hall--huggins-5434833?utm_source=webapp" opinion_id="5434833">19 Cal. 97; Downer v. Smith, 24 Cal. 114" court="Cal." date_filed="1864-07-01" href="https://app.midpage.ai/document/downer-v-smith-5435422?utm_source=webapp" opinion_id="5435422">24 Cal. 114; People v. Senter, 28 Cal. 502" court="Cal." date_filed="1865-10-15" href="https://app.midpage.ai/document/people-ex-rel-vantine-v-senter-5435856?utm_source=webapp" opinion_id="5435856">28 Cal. 502; Wilson v. Castro, 31 Cal. 420" court="Cal." date_filed="1866-07-01" href="https://app.midpage.ai/document/wilson-v-castro-5436225?utm_source=webapp" opinion_id="5436225">31 Cal. 420; Coppinger v. Rice, 33 Cal. 408" court="Cal." date_filed="1867-10-15" href="https://app.midpage.ai/document/coppinger-v-rice-5436449?utm_source=webapp" opinion_id="5436449">33 Cal. 408.

In all these cases, except People v. Senter, the proposition decided was,- that in case a testator or intestate died in California prior to the passage of our Probate Act, the will could not be probated, nor letters of administration granted, under that Act, which was intended to be prospective only in its operation. In People v. Senter the decision was, that where an intestate died after the passage of the Prohate Act of 1850, and before it was repealed by the Probate Act of 1851, letters of administration on the estate might be taken out under the last named Act. But in Coppinger v. Rice we say: “These cases must now be regarded as establishing beyond further controversy the proposition that on the death of an intestate, under the Mexican system, the' heirs succeeded immediately to the estate and became personally responsible for thé debts of the deceased, irrespective of the question whether the heirs were adult or minor, and that no administration, in the sense of the common law, was needed or could be had at any time.”

The latter branch of the proposition was not involved in the decision of the case, and is, therefore, at most but a dictum. But while it may be true that under the Mexican system there was no such proceeding as an administration, “in the sense of the common law,” yet it would be a most strange anomaly in any system of law, if there was not some analagous proceeding for preserving and distributing the estate of a deceased person for the benefit and security of the creditors and heirs at law, in any case whatever. WithT out attempting the difficult and useless task of analyzing with precision what these regulations were under the Mexican system, we are satisfied there was some proceeding provided by law, or by usage and custom having the force of law, whereby the estate of a deceased person could be preserved, and, if need be, in proper cases, disposed of for the payment of debts. Otherwise, it might happen that there would be no heir at law or other party in interest present to take charge of and preserve the estate; in which event, it would be liable to spoliation or ultimate destruction or loss. It appears the Court of First Instance attempted to carry out these regulations or usages, whatever they may have beeii, and hence we find it exercising jurisdiction over the estates of deceased persons, with the consent and acquiescence of the people, its decrees submitted to, and its authority unquestioned. Its proceedings, as shown in this case, were crude and summary, and wanting in some of the chief elements which characterize judicial proceedings in older communities. But, crude as they were, the titles to property, now worth, perhaps, many millions of dollars, are founded upon them; and none hut the most imperative rules of law would justify us in holding, after the lapse of twenty years, that these proceedings were all void for want of jurisdiction in the Court, and thus annulling the numerous titles held under them. On the contrary, we think the proceedings of these Courts have been so long acquiesced in, and such important interests have grown out of them, that they should be held at this late day to have become a rule of property, without inquiring very minutely into their original validity. We therefore hold the title of the plaintiff, founded on the administration proceedings, to be valid. This view of the case renders it unnecessary for us to discuss the question of • ratification by the heirs.

Judgment affirmed.

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Dissenting Opinion

Rhodes, J., dissenting:

It is the settled doctrine of this Court that upon the death of a person in California before the passage of the Probate Act of April 22d, 1850, his estate immediately vested in his heirs or devisees, and they became personally responsible for his debts. (Grimes v. Norris, 6 Cal. 624; Tevis v. Pitcher, 10 Cal. 465" court="Cal." date_filed="1858-07-01" href="https://app.midpage.ai/document/tevis-v-pitcher-5433826?utm_source=webapp" opinion_id="5433826">10 Cal. 465; De la Guerra v. Packard, 17 Cal. 193; Soto v. Kroder, 19 Cal. 97" court="Cal." date_filed="1861-07-01" href="https://app.midpage.ai/document/quivey-v-hall--huggins-5434833?utm_source=webapp" opinion_id="5434833">19 Cal. 97; Downer v. Smith, 24 Cal. 114" court="Cal." date_filed="1864-07-01" href="https://app.midpage.ai/document/downer-v-smith-5435422?utm_source=webapp" opinion_id="5435422">24 Cal. 114; People v. Senter, 28 Cal. 502" court="Cal." date_filed="1865-10-15" href="https://app.midpage.ai/document/people-ex-rel-vantine-v-senter-5435856?utm_source=webapp" opinion_id="5435856">28 Cal. 502; Wilson v. Castro, 31 Cal. 420" court="Cal." date_filed="1866-07-01" href="https://app.midpage.ai/document/wilson-v-castro-5436225?utm_source=webapp" opinion_id="5436225">31 Cal. 420; Coppinger v. Rice, 33 Cal. 408" court="Cal." date_filed="1867-10-15" href="https://app.midpage.ai/document/coppinger-v-rice-5436449?utm_source=webapp" opinion_id="5436449">33 Cal. 408.) In the last mentioned case we say: “We agree with counsel for respondent that it is too late to disturb the rule which was announced in Grimes v. Norris, 6 Cal. 624;” and after reviewing several of the cases above cited, it is added: “These cases must now be regarded as establishing, beyond further controversy, the proposition that, on the death of an intestate, under the Mexican sys.tem, ‘the heirs succeed immediately to the estate, and become personally responsible for the debts of the deceased,’ irrespective of the question whether the heirs were adult or minor, and that no administration, in the sense of the common law, was needed or could be had at anj'- time. It may be that the distinction for which the counsel for appellant so learnedly contends should have been made, but it was not, and it is now too late to draw it. It is impossible to estimate the mischief which might result from a departure from a rule which for so long a time has been regarded by both the bench and the bar as finally settled.” This doctrine is decisive of this ease, but there are other points that are also fatal to the claim of title derived from the probate proceedings.

The Court found as a fact that the Alcalde exercised the power of administering upon the estates of persons dying intestate in the pueblo and district of San Francisco, and of alienating their real estate; that the Judge of First Instance exercised the powers of a Court of general jurisdiction in all matters of law, equity, admiralty, and successions, and in all civil cases and matters of whatsoever nature, and exercised the powers of administering upon the estates of persons dying intestate in said pueblo and district, and of alienating their real estate; and that the people of said pueblo and district submitted to and acquiesced in, and sustained the Alcalde and Judge of First Instance in the exercise of those powers, and regarded their acts as valid and binding in such matters.

I acknowledge the full force of the reasons and suggestions advanced in Fowler v. Smith, 2 Cal. 39" court="Cal." date_filed="1852-01-15" href="https://app.midpage.ai/document/fowler-v-smith-5432394?utm_source=webapp" opinion_id="5432394">2 Cal. 39; Grignon’s Lessee v. Astor, 2 How. U. S. 319; McNair v. Hunt, 5 Mo. 301, and other cases cited by the respondent in support of proceedings had under circumstances somewhat similar to those surrounding this case. The officers under whom these proceedings were had, and most of the people of San Francisco, were Americans, more or less conversant with the rules of the common law, but almost entirely ignorant of the civil law and of the changes and modifications effected by either the Spanish or Mexican law. It was understood that the laws in force before the change in flags still continued in. force, but they bad no access to those laws. The names of the Courts and officers were continued or revived, but there was no one who could define their power or duties. In the throng and rush of business numerous controversies arose, and the necessity for Courts for their decision was imperative. Under such circumstances every reasonable presumption should be extended to sustain their proceedings. It is unnecessary to notice the numerous citations of the plaintiff’s counsel from the books of the Spanish and Mexican law, to sustain the jurisdiction exercised by those Courts, for they were not organized under and were not guided by those laws. I shall not attempt, in this case, to ascertain the limits of the jurisdiction of those Courts; and the necessity of undertaking the inquiry is becoming less every year, and it may reasonably be anticipated that the question will soon become of no practical importance. I shall assume that each of those Courts had jurisdiction of the estates of intestates. But in view of the propositions first laid down—that an estate vested in the heirs of the intestate, they taking the estate by the same title by which the intestate held it, but subject, of course, to the payment of his debts—the Court had no authority to proceed de officio and take charge of the estate, as if the title vested in the Court for the purpose of administration. Uor would the administration amount to a proceeding in rem, for the Court did not have or take possession of the estate. The principal purpose of the administration was to cause the debts of the intestate to be paid, by enforcing the lien or charge upon the estate for their payment. The administrator did not acquire the title to the estate, but it remained in the heirs until it passed to the purchaser at the sale ordered and made for the payment of the debts. He did not represent the land in any sense, but only sold and conveyed it in obedience to the order of the Court, and until it was sold and conveyed the heirs held possession of and represented the real estate as fully in all respects as if they had acquired it by purchase instead of descent. Their title, therefore, could be divested only by proceedings to which they were parties, and the probate proceedings were rather proceedings inter partes than in rem.

Neither of those Courts cquld acquire jurisdiction of the estate except upon the representation, in some form of pleading, of the existence of the jurisdictional facts—facts showing that judicial action was necessary. A petition for letters of administration was filed with the Alcalde on the 28th of December, 1849; and on the same day the Alcalde ordered that letters of administration issue, and on the following day they were issued. On the 11th day of January, 1850, the administrator filed a petition requesting the Alcalde “to make and issue an order to him, authorizing him to set up and sell all the real estate of the said deceased; ” and on the same day the Alcalde made an order directing the administrator to “set up and sell all the real estate of the said deceased,” and to execute proper deeds therefor to the purchasers; but neither in the petition nor the order were any grounds or reasons stated for the sale." The administrator filed a petition in the Court of First Instance, on the 25th of January, 1850, reciting his appointment, the petition and the order for the sale of the real estate, and praying the Court “to take jurisdiction of the premises,” to confirm his appointment as administrator, and the order of sale, and to direct him to proceed with the sale with the same effect as if the order had been made by that Court; and on the same day the Court made an order confirming the proceedings stated in the petition, and ordered that the petitioner “be appointed and continue administrator of the said estate, and that he bo empowered to sell the real estate at public auction, for the purpose of paying the debts of said deceased, with like powers as are prescribed in said order of sale made in that behalf by the said Alcalde; ” and that the administrator •publish a notice requiring the claims against said estate to be presented to the administrator within four weeks after the first publication of the notice. The administrator sold and conveyed the lot of which the premises in controversy form a part on the 14th of February, 1850, and on the next day he conveyed the same to the purchaser.

Passing by the questions of the sufficiency of the petition to give the Alcalde jurisdiction to issue the letters of administration, and of the necessity of giving notice, either actual or constructive, to the heirs of the intestate, of the application for letters of administration, and as to whether the petition filed in the Court of First Instance stated facts sufficient to authorize the Court to order that the petitioner “be appointed and continue administrator of said estate,” I will notice the question of the authority of either of those Courts to make the order for the sale of the real estate.

An allegation in the petition or application upon which the order of sale is sought, that the intestate, at the time of his death, owed debts, is indispensable, and without it the Court has no authority to proceed to order the sale of the property of the estate. The existence of debts is a jurisdictional fact, and must be averred in order to show the necessity of a sale. The fact of the death of the intestate, and that he left property within the territorial jurisdiction of the Court, are not more clearly jurisdictional facts than is the fact that he was indebted at the time of his death. In this respect the rule would be the same were probate proceedings held to be proceedings in rem, for evidently the •Court could neither take possession of the estate, nor order its sale, in the absence of any necessity for such action. The absence of any allegation in either petition, that the intestate, at the time of his death, owed any debt, is fatal to the orders of sale.

There is a further objection to those orders, which, in my opinion, is insuperable.

The heirs were not notified of the proceedings. They 'resided in the State of Ohio, and the brief time elapsing between the filing of the petitions and the making of the order of sale rendered it impossible for them to have been either actually or constructively notified of the pendency of the proceedings. The title was in them, and they could not he divested of it by proceedings of which they had no notice. If it is considered, as is sometimes done, that the several steps in the matter of the estate, commencing with the application for letters, constitute only one proceeding, the difficulty is not avoided, because there was no notice to the heirs of the petition to the Alcalde for letters of administration, or the petition to the Judge of First Instance for confirmation of the appointment by the Alcalde. If the title to the estate vested in the heirs, the necessity of notice to them of the pendency of the proceedings, before the order of sale was made, is too apparent to admit of argument.

The judgment, in my opinion, should he reversed, and the cause remanded for a new trial.