Meeks v. Kirby

CROCKETT, J. — Harlan died seised of the premises in controversy — this was in 1850. In 1856 Aspinall, as administrator of his estate, made a sale of the premises to the defendants and their grantors — this sale was void. It was so determined here in Haynes v. Meeks, 20 Cal. 288, and in Meeks v. Hahn, 20 Cal. 620, in each of which cases the validity of the sale made by Aspinall was brought in question. But the defendants and their grantors occupying the premises at the time they purchased at this void sale afterward remained in possession adversely and continuously until the commencement of this action in 1868 — a period of some twelve years; and among other defenses they rely upon the provisions of section 190 of the Probate Act in bar of the action. The language of that section is as follows: “No action for the recovery of any real estate sold by an executor or administrator under the provisions of this chapter 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.”

That the provisions of this section apply to sales absolutely void for want of jurisdiction, as contradistinguished from sales voidable merely for some defect in procedure, was determined by this court in Harlan v. Peck, 33 Cal. 515, 91 Am. Dec. 653, and reaffirmed here in Harlan v. Miller (January Term, 1868, not reported), and the reasoning of Sanderson, J., in the opinion he delivered in the former ease is, we think, unanswerable.

It is argued, however, that the plaintiff’s case is saved from the bar of section 190 by the effect of the immediately succeeding section 191, which reads as follows: “The preceding section shall not apply to minors or others under any legal disability to sue at the time when the right of action shall first accrue; but all such persons may commence such action [713]at any time within three years after the removal of the disability. ’ ’

It is said that Meeks, the plaintiff, was under disability to sue because by section 114 of the Probate Act, and the 'construction first given it by this court in Meeks v. Hahn (supra), and since then steadily adhered to, the administrator of the estate of Harlan was alone authorized to bring an action to recover the premises, and, of course, neither the heirs at law of Harlan, nor Meeks, their grantee, could have maintained the action pending the administration in the probate court. It does not follow, however, that because Meeks’ title, such as it was, would not, in point of law, have supported an action to recover the possession of the premises, he is thereby himself become a person “under legal disability to sue,” and whose right of action is therefore saved to him by section 191 of the Probate Act. It cannot be said that a party is under legal disability to sue, within the intent of the statute, merely because his alleged cause of action is not invincible, or because his adversary might be possessed of a defense which, if properly interposed, would defeat the action — such, for instance, as the fact here, that the administration of the estate is still pending.