Granger v. Superior Court of Nev. Cty.

THE COURT (Beatty, C. J., not participating).

This is an application to this court for a writ of prohibition against further proceedings in the superior court of Nevada County in two certain actions in said court: 1. The action of Máry A. Benallaek against William G. Richards, James Benailack, and Francis L. Richards, as executors of the estate of Phillip Richards, deceased, and William S. Richards and William G. Richards, as individuals, begun February 11, 1895, and numbered 2343 in said court; 2. The action of Samuel Granger against the same parties, begun May 19, 1897, and numbered 2635 in said court. The general ground upon which prohibition is asked is that a judgment has been rendered in the first-named action which disposes of all the matters at issue between the parties in both actions and that said judgment has become final. Although the eases involve the same facts they will require separate consideration.

1. The complaint in the action of Mary A. Benallaek in substance stated a cause of action to quiet title to lot 28 in block 30 in Nevada City. The complaint alleged that Phillip Richards died seized of this lot on March 27, 1887; that his will was duly probated and the above-named parties appointed the executors thereof; that they were empowered by the will

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to sell and convey real or personal property of the estate without any order of court; that on May 11, 1891, as such executors, they sold and conveyed said lot to Samuel Granger for $3,365, which sum was paid to the executors and by them distributed among the legatees under the will; that thereafter Granger conveyed the property to the plaintiff Mary A. Benallack and that the defendants claimed an interest in the lot adverse to her. The answer of William G. Richards and William S. Richards alleged that the deed from the executors to Granger was never reported to the superior court or confirmed ; that the purchase money therefor was in fact paid by James Benallack and that Granger bought the same on behalf of said James Benallack. Judgment was rendered in favor of the plaintiff from which an appeal was taken to the supreme court and said judgment was reversed on April 6, 1897, the opinion being reported in 116 Cal. 405. The ground of reversal was that a sale made by executors under a power given to them by the will of the deceased did not pass title to the grantee unless the sale was confirmed by the court.

On December 2, 1897, after the coming down of the