Gambar halaman
PDF
ePub

must contain in order to validate the sale (notwithstanding the failure of the petition to state the condition of the estate, and the facts and circumstances going to show a sale to be necessary or expedient) provides that a failure to set out those facts and circumstances in the petition shall not invalidate the sale, if the decree contains a recital of "general facts" showing such necessity, it means to declare that neither the failure to set out the special facts and circumstances which, taken together, show the necessity or expediency of the sale, nor the failure to state the condition (which appears of necessity from and is a part of the special facts and circumstances showing the necessity or expediency of a sale), shall invalidate the sale if the decree shall recite the "general facts" above stated.

Therefore, it becomes pertinent to inquire and determine what is meant by the words "general facts" showing the necessity or expediency of a sale, as used in section 1537, supra.

An examination of sections 1777, 1778, and 1781, Code of Civil Procedure, which are the same in language as the sections in the same code at the time this sale was made, shows that sections 1777 and 1778 prescribed certain ultimate facts or contingencies under which the real estate of the minor may be sold by the guardian, and which must appear in some form in the petition. therefor to give the court jurisdiction.

An inspection of section 1781, supra, shows that by it certain special facts and circumstances showing the condition of the estate, and tending to show the necessity or expediency of the sale of the whole or a part of the minor's real estate, must be set out in the petition.

In the last clause of section 1537, supra, it is plain that a different meaning is given to the word "facts," where it is said, "but a failure to set forth the facts showing the sale to be necessary will not invalidate the subsequent proceedings," from that which is given to the words

"general facts," where it is said, "if the defect be supplied by the proofs at the hearing, and the general facts showing such necessity be stated in the decree."

What construction is to be given to the language of that clause, when taken in its entirety, in order that the whole clause may be intelligible and convey a plain and consistent meaning?

It would seem that "general facts" must be held to mean those ultimate facts showing a contingency as prescribed in sections 1777 and 1778, supra, and that the words, "the facts showing the sale to be necessary," must refer to those more explicit facts and circumstances set out in section 1781, from a statement of which, also, would necessarily appear the condition of the estate.

In no other way can the language of all the sections, supra, be made to harmonize.

The decree of sale does, as we have seen, state the "general facts" showing a necessity for the sale of the real estate of the minor, in almost the exact language of section 1778, supra, showing the existence of one of the contingencies provided for in that section. And on this attack we must presume that at the hearing the court had all the necessary proofs before it.

The decree of sale was therefore valid and binding.

(c) The appellants further contend that the sale was void because the bond to be given under section 1788, supra, to the probate judge, before the sale of the land, although approved and executed before, was not filed until after the sale.

(d) That it was void, also, because the appraisement of the property, although made within a year of the time of the making of the sale, as required by section 1550 of the Code of Civil Procedure, was not marked filed before the confirmation of the sale, and that there was no sufficient description in it of the property to be sold.

According to the recitals of the decree of sale, "before making said sale said guardian, as required in and by

said order of sale, duly executed an additional bond to the state of California," etc.

The bond could not have been "duly executed" unless it had been delivered to the judge, and all other acts performed which the statute required. (Joseph v. Dougherty,

60 Cal. 360.

If delivered to the judge and approved, as the stipulation shows it was before the sale, that was a sufficient filing.

A paper is filed when delivered to the proper officer; and indorsing it with the time of filing is not a part of the filing. (Tregambo v. C. M. & M. Co., 57 Cal. 506.)

It therefore must be conceded that a bond in accordance with law was executed, approved, and filed before the sale, which is all that is required under the section of the Code of Civil Procedure, supra.

(e) The affidavit attached to the inventory and appraisement shows that it was sworn to before the confirmation of the order of sale, before the clerk of the court. The decree of the court, after describing the real estate sold, recites "the said real estate was appraised within one year of the time of such sale, and that the sum aforesaid [that is, the amount of purchase-money at the sale, which was previously set out in the decree] was at least ninety per cent of the appraised value thereof."

In addition, the stipulation shows that "the appraisers were appointed on July 29, 1876 [before the sale], their appointment was made out by the clerk on the same day, and that upon that day, also, they took the oath of office."

The oath of the appraisers to their bills for services and their certificate of appraisement also bore the same date.

It is apparent, therefore, that the appraisement had been substantially filed in the court before the confirmation of the sale, and the marking it filed by the clerk was not essential to its validity.

(f) As to the question whether the appraisement in the form made gave sufficient information to the court to enable it to exercise its prerogative in rendering judg ment, it may be said that in a collateral attack the court (being, as in this case, for such proceedings of general jurisdiction) had, by virtue of the petition filed and exhibited to it, jurisdiction to determine the sufficiency of the evidence upon the matter in hand, and its judgment in the premises cannot here be controverted. (Denis v. Winter, 63 Cal. 17.)

This disposes of the case as affecting the defendants and all of the plaintiffs who have appealed, except Miller and Gay.

(g) Miller obtained an undivided one half, or eight sixteenths, of his lot through Jordan, Batz, and Beaudry; he obtained five sixteenths through the decree of distribution to the widow of Jordan. The other three sixteenths of the lot belonged, under the decree of distribution, to the minor, Victoria Jordan, and now by her deed to Biscailuz. Her interest in this lot was not sold at the guardian sale, so that the judgment as to Miller is correct, and upon his part no points or authorities have been filed.

(h) As to the interest of Gay, it appears that Jordan, the father of Victoria, died seised and possessed of the whole of the tract which Gay now claims. The latter obtained from Beaudry title to the interest of the widow, which she received under the decree of distribution, if that decree is not void for the want of sufficient description of the land which Gay claims.

The minor's interest was never sold, so that the question here is, whether or not Gay can look to the decree of distribution as fixing his title.

The decree recites, among other things: "It is hereby adjudged, ordered, and decreed . . . . that the residue of the estate of said A. Z. Jordan, deceased, now remaining in the hands of such executor, which estate is herein

after particularly described, and other property not now known or discovered, which may belong to the said A. Z. Jordan, deceased, or in which the said estate may have an interest, be and the same is hereby distributed as follows, to wit: An undivided five-eighths part is hereby assigned, transferred, set over, and delivered and distributed to the said Mary Jordan, now Mary Huarte, the said widow of the said A. Z. Jordan, deceased, and the other undivided three eighths to Victoria, the minor child of the said A. Z. Jordan, deceased.

[ocr errors]

"The following is the personal property and a particu lar description of the real estate remaining in the hands of the said executor belonging to the estate of the said A. Z. Jordan, deceased, being the residue of the said estate referred to in this order, and of which distribution is ordered, adjudged, and decreed, as aforesaid."

Here follows the particular description of certain lands, in which that of Gay is not mentioned.

It was evidently the intention of the judge, in making the decree, to distribute to the widow an undivided five eighths, and to Victoria Jordan three eighths, of any lands in which the estate of the decedent had an interest. Is this description sufficient upon a collateral attack to include the land of Gay?

It is clear that the estate did have an interest in this land; for it is admitted that by deed Jordan had acquired it, and he had never parted with it.

Is the decree to be pronounced "a nullity for uncertainty of description," "because" the court can see that "nothing is described"? Is it one where the description is so defective that "the purchaser," relying "upon the description," and applying the ordinary rules of evidence to such a matter, can find nothing? If not, then the decree on a collateral attack, such as this, is not void. (De Sepulveda v. Baugh, 74 Cal. 468.)

It is conceded here, upon all sides, that Jordan purchased the property for a valuable consideration. And

« SebelumnyaLanjutkan »