Huse v. Den

California Supreme Court Aug 30, 1890 No. No. 12729Published

Before: McFarland

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Holding. The court affirmed the judgment and order denying a new trial, holding that the executors lacked authority to sell the land without probate court orders, the trust deed was validly executed, and the purchasers were not entitled to subrogation or additional compensation for improvements beyond the offset for rents and profits.

Issues

Whether the trust deed executed by Nicholas A. Den was validly delivered and executed.
Whether the executors had the power to sell real property without probate court authorization.
Whether the purchasers at a void sale are entitled to subrogation for payments made to the estate.
Whether the purchasers are entitled to compensation for improvements beyond an offset for rents and profits.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the sales and conveyances attempted to be made were void.”

“such allowance can be made only as an offset for damages claimed for withholding possession.”

Synopsis

Appeals from a judgment of the Superior Court of Santa Clara County, and from an order denying a new ' trial.

This action is the same as that entitled Mill v. Den, reported in 54 Cal. 6-24, in which the character of the action and the principal facts are stated, and various points of law decided. The case was originally entitled José Maria Mill-and Charles E. Muse, plaintiffs, v. Richard 8. Den et al., defendants, including as defendants the ten children, of Nicholas A. Den, their mother, then Rosa A. Welch, and her then husband, George C. Welch; also, W. W. Hollister and other persons to whom Huse and Hill, as executors of Nicholas A. Den, deceased, had attempted to make sales of portions of the Rancho dos Pueblos. Since the last appeal, Hill refused to further act as plaintiff, and was made a defendant; hence the present title, Huse v. Den et al. The sale and conveyance to Hollister was made by Pluse and Hill, as executors, without order of court, April 16,1869. Hollister claimed title by adverse possession, under the statute of limitations. The action was begun June 13, 1876, and the patent confirming the Mexican grant of the Rancho dos Pueblos to Nicholas A. Den, and to his heirs and assigns, was issued February 23, 1877. The survey was made in 1871, and approved January 11, 1872. Further facts are stated in the opinion of the court.

McFarland, J. This is an appeal by defendants, Hollister et al., from an order denying a new trial. There is also another appeal by the same defendants (No. 12728) from the judgment rendered in the action. The transcripts in the two appeals are substantially the same; and as the points in the two are similar, they have been argued and submitted together. The subject-matter involved is the ownership and right of possession of two tracts of land, each being part of the Rancho dos Pueblos, in the county of Santa Barbara,—one containing 2,785 acres, and the other 112 acres. The main issue as to the ownership is between the heirs of Nicholas A. Den, deceased, and Hollister et al., who claim as purchasers from the executors of said Den, deceased,—these purchases having been made without any orders of the probate court. The judgment of the court below was in favor of the heirs and against the purchasers, who appeal. The case has been in this court before. It was first decided in the lower court in favor of the purchasers, but upon appeal the judgment was reversed in this court, and the cause remanded. After some amendments to the pleadings, it was tried again, with the result as above stated.

[398]When the case was here before, the history and. facts of the case were so fully stated in the opinion of the court that we do not deem it necessary to restate them here. (See Hill v. Den, 54 Cal. 6.) And many of the questions involved were decided at that time, and have become the law of the case. We will therefore notice the new features which the present appeals present.

1. An important document in the case is a deed of trust, embracing one undivided half of the rancho, executed by said Nicholas A. Den and wife to himself and one R S. Den, on September 16, 1851. This deed was attacked on the first trial as invalid and inoperative, for various reasons then presented; but this court held that deed to create a perfectly valid and operative trust for the purposes which it declared (54 Cal. 19,20); and such must now be held to be the law on that point. On the first trial, however, while the appellants here denied the effect of this deed as claimed by the heirs, they admitted its due execution, but before the second trial they amended their pleadings so as to deny its execution. Therefore, the point as to its execution was not before this court on the former appeal. But at the second trial the court below found that it was delivered; and we think the finding is based on sufficient evidence. There is no dispute that the instrument was signed and acknowledged by Nicholas A. Den and his wife; but it is contended that there was no sufficient delivery, because there was no formal and physical handing of it over to the other trustee, R S. Den. But R S. Den was present when it was prepared, signed, and acknowledged, and consented to become one of the trustees therein and act as such. It remained afterward in the possession of Nicholas A. Den, who caused it to be recorded in the recorder’s office a month or two afterward, and was among his papers at the time of his death, and in his will he referred to it, and recognized it as an effectual vesting of the property mentioned in it in the grantees

Huse v. Den

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