LeBreton v. Superior Court of San Francisco

Morrison, C. J. The petition of plaintiffs prays for a writ of prohibition against the Superior Court of the city and county of San Francisco, under section 1102 of the Code of Civil Procedure, which declares that such writ “ arrests the proceedings of any tribunal,corporation, board, or person, when such ¡iroceedings are without or in excess of the jurisdiction of such tribunal, corpoation, board, or person.” And the following section (1103) provides that the writ shall issue in all cases “ where there is not a plain, speedy, and adequate remedy in the ordinary course of law.”

The petition filed in the case is of very great length, but the important facts which it contains may be briefly stated as follows : On the first day of October, 1870, Juana M. Estadillo and others were indebted to Theodore LeRoy, John B. Felton, and others in the sum of nearly $450,000, of which amount there was due John B. Felton the sum of $24,500; and to secure the same they, Juana M. Estudillo and others, executed to LeRoy a deed of trust on certain lands therein described, situated in the counties of Alameda, Santa Barbara, and San Luis Obispo, in this State, with power to sell said lands, collect the rents falling due [28]thereon, pay the taxes, and to exercise various other acts of confidence and trust respecting said lands, not only for his own benefit, but for the joint benefit of himself and the other parties named in the deed as cestuis que trust.

The third article of the deed of trust made it the duty of the trustee to sell the lands conveyed to him ; and by the fourth article he was directed to pay off the indebtedness specified therein. The said Le Boy entered upon the duties imposed by the trust deed, and in the course of the execution thereof, commenced an action on the twenty-sixth day of September, 1874, in the District Court of the then Third Judicial District, against Juana M. Estudillo and others, and procured an order of the court for the sale of the trust property to pay the debts embraced in and provided for by the trust deed. In pursuance of said order of sale, the commissioners appointed by the court for that purpose proceeded to sell the trust property, at which sale Le Boy became the purchaser thereof, and deeds for the same were executed to him by the commissioners. But the amount for which the property was sold was not sufficient to satisfy the trusts provided for in the deed. Le Boy failed to pay-the claim of Felton, or any part thereof, and departed this life in April, 1882. In the following May, the petitioner, Edward J. Le Breton, was appointed administrator of his estate. John B. Felton died in May, 1877, and in the following June his executor, Henry Barroilhet, and executrix, Katharine B. Felton, commenced the action complained of and sought to be prohibited, in the Superior Court within and for the city and county of San Francisco. In the complaint in that action, the foregoing facts, substantially, were set forth, and also the additional fact that Theodore Le Boy and Edward J. Le Breton, his administrator, who was the defendant in the action brought by Barroilhet and Katharine B. Felton, had been in the possession of the lands and premises described in the deed of trust, and had received therefrom rents and profits amounting to $140,000. The prayer of the complaint in the action against Edward J. Le Breton is, that an account be taken between the plaintiffs and defendants of and concerning the said trust, and of the advances and acts of the said Theodore Le Boy; that the trusts be executed by selling the lands, premises, and prop