Campbell v. Drais
Before: McFarland
Synopsis
Estates oe Deceased Persons—Sale oe Real Estate—Order to Show Cause—Service oe Notice.—A probate sale of real estate made without the order to show cause required by section 1537 of the Code of Civil Procedure, and without the service or publication of notice required by section 1539 of that Code, is invalid and void.
Id.—Waiver oe Notice to Minor Heirs—Authority oe Appointed Attorney.—The attorney appointed by the court to represent minor heirs, has no authority to represent them in a proceeding to sell the real estate oí the decedent, until after the court has obtained jurisdiction of their persons by the service of notice upon them; and he has no authority to waive such notice.
Id.—Appearance of Appointed Attorney—Proof of Service of Notice.—The provision of section 1718 of the Code of Civil Procedure, as it stood in 1874, that the appearance of the appointed attorney is sufficient proof of service of notice on the parties he represents, implies that there must be notice to the parties and service thereof in fact prior to such appearance; and when the contrary appears affirmatively, such attorney could not waive both notice and service.
Id.—Avoidance of Probate Sale— Statute of Limitations— Recognition of Title of Heirs—Tenancy in Common.—The statute of limitations of three years prescribed by section 1573 ot the Code of Civil Procedure, within which the heirs of the decedent may avoid a sale made by an executor or administrator, does not run where it appears that the heirs had no cause of •action against the purchaser; and where the purchaser recognized the title of minor heirs, and held and continued to hold . for them during their minority and after their majority, as tenant in common with them, they have no cause of action against him and are not barred by that section of the code during such recognition of their title, and holding of the purchaser for them.
Id.—Quieting Title of Heirs—Notice to Mortgagee of Pub-chaser—Deed Under Foreclosure—Running of Statute.— The statute of limitations does not begin to run against an action by the heirs of the decedent to quiet their' title, in favor of a defendant who claims title under the foreclosure of a mortgage executed by the purchaser at a void probate sale, and who took the mortgage with notice of the rights of the heirs, until the mortgagee received the sheriff’s deed, and attempted to obtain possession thereunder, adversely to the heirs.
Id.—Defense to Foreclosure—Cause of Action by Heirs.—The heirs could not set up their paramount title as a defense in the action to foreclose the mortgage; and they were not called upon to commence anj action until an adverse right was claimed under the sheriff’s deed.
Id.—Return of Money Paid—Estoppel.—The return of the portion of the purchase money received by the minor heirs upon distribution of the estate, need not be returned to one who obtained a sheriff’s deed under foreclosure of a mortgage against the purchaser at the probate sale, as a condition of quieting their title against him; nor can he claim any estoppel as against the heirs where he took his mortgage with notice of their rights.
McFARLAND, J. This is an action to quiet title to the undivided half of a certain piece of land described in the complaint. The plaintiffs are the children and heirs-at-law of John A. Campbell, deceased, who died May 21, 1873, seised in severalty of the whole of said tract of land, and it is conceded that the plaintiffs, as heirs of said decedent, are the owners of the undivided half of the land sued for, unless their title thereto has passed, either by virtue of a probate sale made in the administration of the estate of the decedent in 1874, or has been lost to them by the operation of the statute of limitations. Judgment in the lower court went for plaintiffs, and defendants appeal from the judgment and from an order denying their motion for a new trial.
Appellants claim title, first, as purchasers under the foreclosure of a mortgage made to M. J. Drais, now deceased, by one Church, and contend that Church had title through mesne conveyances by virtue of a probate sale of the property in 1874. We are satisfied, however, that the probate sale was' invalid and void. The petition under which the sale was made was filed on the seventeenth day of January, 1874, and is as follows: “The petition of C. A. Campbell, administrator of the estate of said deceased, respectfully shows that heretofore, to wit, on the fourteenth day of October, 1873, petitioner filed his petition praying for an order of sale of certain real estate, and showing the necessity therefor; that owing to a mistake in the inventory on file, the real property set forth in said petition did not belong to said estate; that therefore the order heretofore granted has become ineffectual; that a new inventory has been filed correctly describing the real estate belonging to said estate; that the facts which constitute the necessity for selling the real estate belonging to said estate still exists and are as set forth in said former petition, to which reference is hereby made, and petitioner prays may be taken as a part hereof; that a hotel constitutes a portion of the improvements on the real estate [257]belonging to said estate, which said hotel contains furniture for the use thereof; that said furniture is worth about two hundred and thirteen dollars and sixty cents. Wherefore petitioner prays that an order of sale be granted authorizing said administrator to sell said real estate and furniture at public sale, and for such further order as may be proper.” (Signed by the attorney for the administrator and verified by the latter.) (It appears that a former petition for the sale of the property had been filed October 14, 1873, but that on account of the supposed insufficient description of the property it had been abandoned.) On the same day on which the second petition, above quoted, was filed, to wit, January 17, 1874, the order for the sale was made, and under this order the sale took place; and it is evident that the order for the sale made under these circumstances was invalid and void. Section 1538 of the Code of Civil Procedure provides that to obtain an order for the sale of real property a petition in writing must be made to the superior court setting forth certain facts; and section 1537 provides that, if it appears to the court from the petition that it is necessary to sell the real estate, an order must be made directing all persons interested in the estate to appear before the court at a time and place specified, not less than four nor more than ten weeks from the time of making such order, to show cause why an order should not be granted to the executor or administrator to sell so much of the real estate of the decedent as is necessary; and section 1539 provides that a copy of the order to show cause must be personally served on all persons- interested in the estate, including the heirs, at least ten days before the time of hearing, or be published four successive weeks in such newspaper as the court shall direct. In the ease at bar no such notice to show cause was made, and no service of any kind was made upon the respondents herein, who at that time were all minors, the oldest of them being only about twelve years old. The respondents contend that the petition did not give jurisdiction because it contained no description of the property to be sold; but if it could be held that a reference to various documents referred to in the petition might, under a very liberal construction, show a sufficient description of the property, still the absence of any order to show cause and
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