Wills v. Pauly
Before: McFarland
Synopsis
Estates of Deceased Persons—Sale of Real Estate—Jurisdiction— Unverified Petition.—The superior court obtains jurisdiction to order a sale of real estate only by substantial compliance with the provisions of the Code of Civil Procedure regulating such sales, first of which is a verified petition; and where there is no verified petition upon which to base an order of sale, a sale under such order is void, and passes no title to the purchaser.
Id.—Estate Less than Fifteen Hundred Dollars—Construction of Code.—The fact that the estate of the decedent is of less value than fifteen hundred dollars, only justifies the court in setting it apart without any sale, to the widow and children, subject to the expenses of last sickness, administration, etc., pursuant to section 1469 of the Code of Civil Procedure; but if there is to be any sale of real property to pay such expenses, it must be conducted under the provisions of title IX of the code, where alone the power to make such sale and the method of making it are to be found; and the court has no jurisdiction to dispense with the regular proceedings required by that title, because the estate is of less value than fifteen hundred dollars.
Id.—Enforcement of Trust—Title of Purchaser—State Patent— Rights of Minor Heir—Statute of Limitations — Discovery of Facts.—Where the purchaser at a void sale of the real estate of a decedent obtained title from the state as the successor in interest of the decedent, under a certificate of purchase held by such decedent, one who was a minor heir at the time of the void sale may enforce a trust against such purchaser; and where the facts upon which the trust was based were not discovered by such heir, until within three years before the commencement of the action, the cause of action is not barred by the statute of limitations.
Id.—Res Adjudicaba—Dismissal or Suit in Federal Court—Want of Jurisdiction.—A judgment of dismissal of a suit brought by the plaintiff in a federal court for want of jurisdiction or right of the plaintiff to sue in that court, is not res adjudicata as to the cause of action upon the merits, or a bar to another action for the same cause brought by the same plaintiff in the state court.
Id.—Certificate of Purchase Held by Decedent—Patent Obtained by Purchaser at Void Sale—Payment not Required or Heir Enforcing Trust.—Where the decedent had fully paid for the land in controversy, and obtained a certificate of purchase therefor, and the purchaser at a void probate sale obtained a patent under such certificate, an heir of the decedent enforcing a trust against the holder of the patent, to one-half of the land, is not required to pay one-half of the purchase money to the defendant.
McFarland, J. This action is brought by the plaintiff for the purpose of having it declared that defendant holds the undivided one half of a certain tract of land described in the complaint as the trustee of the plaintiff, and to obtain a conveyance thereof by defendant to plaintiff, and an accounting for rents and profits. The court below rendered judgment for plaintiff, from which, and from an order denying a new trial, the defendant appeals.
Respondent contends that upon this appeal nothing can be considered other than the judgment-roll, for the reason that the appeal from the judgment was not taken within sixty days, and that the notice of motion for a new trial was given prematurely; but, as it is doubtful whether or not the respondent did not waive the irreg. ularity of the notice of motion for a new trial by filing amendments to the statement without objection, we will not consider that question, as it does not appear to be very important in the case.
J. O. Glenn, father of the plaintiff, died on Novem[579]her 11, 1878, seised and possessed of the land in question, leaving surviving him his widow, Harriet F. Glenn, and his daughter, Mary E. Glenn (now Mary E. Wills), plaintiff herein, who was his only child. One John D. Glenn was appointed administrator of his estate, but he was afterward removed and the widow, Harriet F. Glenn, was appointed as administratrix. On the seventeenth day of November, 1879, said Harriet, as such administratrix, presented to the judge of the probate court her petition praying for a decree authorizing her to sell the land here in question “ without regard to the regular proceeding for the sale of real estate of deceased persons, for the payment of the debts of the estate, and dispensing with all the requirements of title IX of the Code of Civil Procedure of the state of California then in force, and that said sale might be made without notice to anyone of the filing of said petition or of said sale, and that the said sale ■so prayed for might be made at private or public sale, as the said administratrix might see fit.” This petition was signed by the attorney of the administratrix, and was not verified, and on the same day said court made an order for the sale of said land by the administratrix, “without regard to the regular proceedings provided for in title IX of the Code of Civil Procedure, respecting the sales of property, which proceedings are hereby ■dispensed with for the purposes aforesaid, and that there need be no publication of this petition upon which this decree is based, nor any order to show cause why said land should not be sold, and that there need he no bids in writing received from intending purchasers thereof, but the same may be sold in any manner which seems to administratrix most beneficial for the interests of the heirs of said estate forthwith. Afterward on July 26, 1880, the said administratrix made a deed of the lands here in contest to the appellant Pauly, in words and figures as follows:
More from California Supreme Court
- People v. Wende (1979)
- People v. Watson (1956)
- People v. Superior Court (Romero) (1996)
- People v. Kelly (2006)
- Auto Equity Sales, Inc. v. Superior Court (1962)
- Aguilar v. Atlantic Richfield Co. (2001)
- People v. Lewis (2021)
- In Re Estrada (1965)
- Denham v. Superior Court (1970)
- People v. Marsden (1970)