Abel v. Love & Fowler

Baldwin, J. delivered the opinion of the Court Field, C. J. concurring.

This was a suit to recover money collected by defendants as the rents and profits of one-tenth interest in a water ditch. The defendants it seems were, or assumed to be, in possession of this property, claiming an ownership in a portion of the ditch, and collected the rents for the whole, including the share which would fall, on a proper division, to the interest of the plaintiff. The defendants demurred to the complaint. The point is taken here, that the plaintiff, being a tenant in common, cannot maintain this action to recover his share of the rents and profits of his cotenant; and Pico v. Columbet (12 Cal. 420) is cited to sustain this proposition. But that case embodies a different principle. It has no application to the case of money received by one tenant in common from sales of water or profits derived from the business of a ditch or mine. Indeed, these operations may be regarded as partnerships, so far as this matter is concerned, the shareholders being regarded as partners entitled to participate in the profits derived from the business of carrying on a ditch or the sales of water. In the case of Goodenow v. Ewer, at the last term, we had occasion to review the case of Pico v. Columbet, and need only refer to the opinion there to show the true construction of the former case.

The facts here show that this ditch property was rented by the defendants, and that a sum of money was realized by the defend[238]ants from the lease. For so much of this sum as falls to the share of the plaintiff, the defendants are liable in this action; the money may be considered as money had and received by defendants to the plaintiff’s use.

The other points made touch the question of the plaintiff’s title-to this share of the ditch property. He deduces his title from a sale made by a Public Administrator under order of the Probate Court. To the proceedings of that Court, as evidencing the title, two objections are made: 1st, that the Court of Probate had no jurisdiction, as in the petition for an order granting administration on the estate of the decedent, it does not appear that his last place of residence was Shasta county. The phrase used in this connection is, that the decedent was “late of,” etc. But this point seems to be disposed of in the case of Beckett v. Selover, (7 Cal. 233) and we think that the decision on this question ought not to be disturbed.

It is next objected that letters of administration were not issued to the Public Administrator. But if the actual issuance of these letters be necessary in order to authenticate the title of an administrator, in any proceeding of this sort, after a grant of administration has been regularly made, we think there is no necessity for such" issuance to a Public Administrator, who has been duly authorized to administer by the judgment of a Court having jurisdiction. The general language in Rogers v. Hoberlein (11 Cal. 120) was not designed to decide more than that the Public Administrator must show a grant of administration upon the particular estate; but this grant may be shown, in the case of Public Administrators, by the production of the order or a copy. At all events, the mere failure to issue the letters does not affect the jurisdiction of the Court.