Paty v. Smith

BELCHER, J. — This is an action to recover possession of the undivided one-fourth of certain premises situated in the city of San Francisco. William Paty became the owner of the premises in 1849 and died intestate on the 14th of February, 1850, leaving as his heirs at law his widow and three minor children. One of these children, Charles M. Paty, died in 1857, under age and never having been married. Francis W. Paty, the plaintiff, is one of the surviving children, and claims as the heir of his father and brother.

On the 25th of February, 1850, letters of administration upon the estate of William Paty were granted by John W. [728]Geary, “Alcalde and ex-officio Probate Judge,” to John H. Gleason and John Paty, who thereupon duly qualified as such administrators, filed bonds, inventories, etc.

No other steps appear to have been taken toward settling the estate until the 31st of July, 1851, when Gleason, one of the administrators, filed a petition in the probate court asking for an order to sell the premises in controversy to pay the debts of the estate. An order to sell was made by the court and the property sold to the grantor of the defendant on the 4th of October, 1851.

On the 6th of May, 1861, an act was passed by the legislature (Stats. 1861, p. 293), entitled “An act to authorize the guardian of Francis William Paty to sell and convey certain real estate, ’ ’ in these words:

“Section 1. Martha Ann Paty Dayley, the mother and guardian of Francis William Paty, a minor, is hereby authorized and empowered to sell at public, or private, sale, in her discretion, any, or all, of the real estate, or interest therein, of the said Francis William Paty as shall in her opinion most promote his interests.

‘ ‘ See. 2. On making any such sale, or sales, the said Martha Ann Paty Dayley may convey the property so sold to the purchaser, or purchasers, thereof, and receive the purchase money therefor, and the title so conveyed shall be valid, and convey all the interest of the said minor in the property so sold.

“See. 3. The said Martha Ann Paty Dayley shall account for the proceeds of such sales as for any other assets in her hands pertaining to said minor.

“Sec. 4. No deed, or conveyance, of the said real estate, or any part thereof, made under the provisions of this act, shall be valid, or convey any title, unless the sale shall have been confirmed by the Probate Court, previous to the execution of such deed of conveyance. ’ ’