Meeks v. Hahn

Field, C. J. delivered the opinion of the Court—Cope, J. and Norton, J. concurring. This is an action of ejectment for the possession of certain premises situated within the city of San Francisco. It arises out of the same state of facts as the case of Haynes v. Meeks, recently decided by this Court, (ante, 288). It differs from the latter case only in this: that here the plaintiff claims under the conveyance from the heir's of Harlan, deceased, and the defendants claim under purchasers at the sale made under the order of the Probate Court by Aspinwall, the alleged administrator of the estate; whereas, in Haynes v. Meeks, the plaintiff claimed under the sale and conveyance of the administrator, and the defendants under a conveyance from the heirs.

In Haynes v. Meeks we held that the petition for the sale of the real estate described therein was fatally defective in its averments; [624]that it did not comply with the provisions of the statute in several essential particulars, and that in consequence, the Probate Court never acquired jurisdiction to order the sale in question. The sale by the administrator, and the conveyance which followed, were therefore void.

The respondents however insist in addition to the objections urged in the former case: first, that the action is barred by the statute, which reads as follows: “ Ho action for the recovery of any estate, sold by an executor or administrator, under the provisions of this chapter, (the chapter which provides for the sale of property by executors and administrators) shall be maintained by any heir or other person claiming under the deceased testator or intestate, unless it be commenced within three years next after the sale,” (Act to Regulate the Settlement of the Estates of Deceased Persons, of May 1,1851, section 190) ; and second, that the action cannot be maintained by the hems, or any person claiming under them, until the administration is closed, or the estate is delivered over to them under the decree of the Court.

Before proceeding to consider these objections, it may be well to notice the position taken by the learned counsel for the respondents, and which was also urged in the case of Haynes v. Meeks, that the jurisdiction of the Probate Court to order a sale of the real property of an intestate is not derived from the petition showing the necessity of the sale to meet the liabilities against the estate. Their argument in support of this position is as follows: At common law, the real estate was not assets in the hands of the administrator, nor subjected to the jurisdiction of the Surrogate or Probate Court. It passed immediately to the heir, and the administrator had no more to do with it than if the .heir had acquired it by purchase from a stranger, and not by descent. In process of time it was provided, by statute, that in case of a deficiency of assets to pay the debts of a decedent, the administrator or creditor might convert the heir’s inheritance into assets, upon presenting his petition for that purpose showing the deficiency. To do this, the Court was called upon to exercise an extraordinary jurisdiction—one extending over a new subject, and bringing new parties before it. In the exercise of this extraordinary jurisdiction the principle of strictissimi juris was