14 P.2d 170 | Cal. Ct. App. | 1932
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *633 THE COURT.
This action was brought to quiet the title to certain real property in Alameda County. The complaint alleged that William Sidney Wood died testate on January 30, 1908; that his will was admitted to probate in the Superior Court of the City and County of San Francisco, and that plaintiff and Baldwin Wood, now deceased, were duly appointed and qualified as executors thereof; that decedent first named was the owner and in possession of the property in suit, title to which upon his death vested in his heirs and devisees subject to administration, and that there has been no distribution thereof; that pursuant to an order of the superior court in the matter of said estate made on March 20, 1922 — which purported to confirm a sale of said property to E.J. Sittig — the said Baldwin Wood, in his own name and that of plaintiff, as executors executed a deed thereof to Sittig; that the order was based upon a return of sale and petition for confirmation; that the proceeding and sale were void for lack of jurisdiction, and the order obtained by means of extrinsic fraud.
Defendants and respondents Roach, Mercantile Securities Co. and Mercantile Trust Co. demurred generally and specifically *634 to the complaint. The special grounds of demurrer were that several causes of action had been joined and not separately stated; that the complaint was ambiguous, uncertain and unintelligible in certain respects, and that the causes of action alleged were barred by the provisions of subdivision 2 of section 336, and subdivisions 2 and 4 of section 338, of the Code of Civil Procedure. The demurrer was sustained with leave to amend, and plaintiff having failed to do so a judgment — from which she has appealed — was entered against her.
The ground of attack upon the proceeding for the sale of the property is that neither the petition for confirmation nor the order confirming the sale stated the jurisdictional facts, and that consequently the order and the deed based thereon were void.
Originally the probate courts of California were of limited and inferior jurisdiction (Townsend v. Gordon,
By the Constitution of 1879 (art. VI, sec. 5), superior courts were given jurisdiction of all matters of probate in like manner as of cases at law or in equity (Burris v. Kennedy,
The Burris case was an action to quiet title brought by an heir of James Kennedy, deceased, against defendants who claimed under a probate sale had in the matter of the decedent's estate. It was contended that neither the application nor the order of sale contained a statement of the jurisdictional facts, and that consequently the sale was void. It was concluded on appeal that facts showing a sale to be necessary were sufficiently alleged in the application; and although the allegations were erroneous the sale was not void for that reason. Further, that while an application to sell the real property of an estate was an independent proceeding in that it was essential that the application be made substantially as provided by statute, nevertheless the court in entertaining the application and passing upon it was not acting as a special tribunal but in the exercise of its general jurisdiction over the subject matter, derived from the Constitution and not from the statute; and that the same presumption must attach to decrees in probate proceedings upon collateral attack as to judgments at common law or in equity, and that the sufficiency of the proceedings or petition must be decided by the same liberal rule which applies to the pleadings in an ordinary action upon such an attack. In the same connection, quoting from In re Burton,
Judge Van Fleet in his work, "The Law of Collateral Attack," section 275 (citing Culver v. Hardenburgh,
Previous to the amendment of 1919 (Stats. 1919, p. 1177), a sale of real property could only be had upon an order of court, to obtain which it was necessary to present a verified petition setting forth the facts enumerated in the statute, it being provided, however, that a failure to set forth such facts should not invalidate subsequent proceedings if the defect be supplied by proofs at the hearing and the facts stated in the decree. (Code Civ. Proc., sec. 1537) The amendments of 1919, which were in force when the proceeding in question commenced, repealed sections 1537, 1538, 1539, 1540,
In the present case the return of sale and petition for confirmation contained a description of the property, a statement of the notices given and the expenses and terms of the sale, but no facts showing its necessity or the purpose or that it would be to the advantage or best interest of the estate or those interested therein, nor was there a finding on any of these matters in the order of confirmation. The order found, however, that notices of sale were given in accordance with the statute and a previous order of the court, and that due and legal notice of the hearing of the return had been given pursuant to an order appointing a day for that purpose; also that the amount bid was within ninety per cent of the appraised value of the property to be sold.
No cases referring to the change in procedure under the amendments, except the two last cited, have been called to our attention. Estate of Benvenuto, supra, was an appeal from an order confirming a sale of real estate by an administrator. It was held among other things that the amendment did not deprive the heirs of the right under section 1380 of the Code of Civil Procedure to a notice of the proceedings for a sale, and that section 1389 of the same code remained applicable to the mode of sale under the amendment, since the sale "is ordered" when it is confirmed and the deed directed to be made. In discussing these matters it *638 was said that the questions whether a sale be necessary or for the best interest of the estate are under the new procedure to be decided upon the application for confirmation instead of upon the hearing of a petition for an order of sale as formerly. The sufficiency of the return of sale was not questioned on the appeal, but the court in passing said, "such return must state the terms of the sale agreed on and the purposes for which the money is to be used".
As shown above, the amendment directed a return of the proceedings and an inquiry by the court but contained no provision requiring a statement as to how the money was to be used. The language found in the opinion must be construed with reference to the particular facts then before the court; [1]
and while in some instances a dictum is entitled to weight (Adams v. Seamon,
By the enactments of 1919 it was manifestly the intention to establish a new and complete scheme with respect to proceedings for the sale of the property of decedents' estates. This is equivalent to a legislative declaration that whatever is embraced in the new act shall prevail. (State v. Conkling,
[3] We are satisfied that by the repeal of the sections mentioned on the omission of the same provision from the *639
new procedure it was the intention that no allegation or finding of the statutory grounds for a sale should be necessary to jurisdiction. Such grounds are, of course, necessary to support a confirmation of sale, and the court is required to ascertain their existence before acting; but an erroneous conclusion in that regard would constitute error in the exercise of jurisdiction, which might be corrected on appeal (Code Civ. Proc., sec. 963) rather than a want of jurisdiction. As held in the Burris case, supra, the superior court in such matters acts in the exercise of its general jurisdiction derived from the Constitution, and the same presumptions attach to its decrees in probate matters upon collateral attack as to judgments at law or in equity. (Johnson v. Canty,
These rules apply to the present case; and we must therefore hold that the record on its face does not show the order *640 in question to be void, and that therefore it was not subject to collateral attack. (15 Cal. Jur., Judgments, sec. 144, p. 59.)
[5] Plaintiff alleged that her signature was forged to the return of sale and to the deed mentioned. She also averred other acts of fraud and concealment on the part of her coexecutor, as the result of which she did not discover the facts alleged until after his death, on April 28, 1926. These allegations were relied on as grounds for her claim that the order of confirmation was procured by extrinsic fraud. It was not alleged, however, that the defendants were parties to the fraud, or purchased with knowledge thereof, and she now concedes that her pleading in this respect was insufficient (Doyle v. Hampton,
[6] Respondents urged another ground of demurrer, namely, that several causes of action were alleged and not separately stated. In addition to the allegations that the proceedings leading to the execution of a deed by her coexecutor were void, and upon which averments a decree quieting title was prayed, the complaint alleged the acts of fraud recited above. The latter were admittedly insufficient to constitute a cause of action, were not germane to the other allegations, and on motion might have been stricken from the pleading. Such defects are not grounds for demurrer, the proper remedy being a motion to strike (21 Cal. Jur., Pleading, secs. 69, 173, pp. 111, 249; Henke v.Eureka Endowment Assn.,
There appear to be no grounds for respondents' special demurrer, but for the reasons stated their general demurrer was properly sustained, and the judgment must accordingly be affirmed.
The judgment is affirmed.
A petition for a rehearing of this cause was denied by the District Court of Appeal on October 1, 1932.