I. The Statute of Limitations could not run against plaintiff, she being an infant, and bringing suit immediately on her coming of age. There is no finding or proof of adverse possession, and the finding of title in plaintiff is of course a finding that there had been no five years adverse possession, if such adverse possession would give them title under the circumstances of the case. But had there been a finding the other way, it would still avail them nothing, because:
1. Plaintiff was an infant until within a few months before bringing suit. It is clear that she was not barred. (Burton v. Robinson , 51 Cal. 186.)
2. It makes no difference whether there was an administrator or not. We are in a position precisely analogous to a remainder-man. A remainder-manis precisely what we are, the tenant for years being the administrator, with the right to the possession of the land until the close of the administration. We had the legal title from the moment of S. J. Crosby's death, but without the present right of possession. We took no title from the administrator. He had simply a lien on the land for the payment of the debts. (Beckett v. Selover , 7 Cal. 238; Estate of Woodworth , 31 id. 604; Burton v. Lies , 21 id. 91; Chapman v. Hollister , 42 id. 462; Brenham v. Story , 39 id. 179.)
A remainder-man is never barred until he has the right to possession. An adverse possession can only be against a person entitled to possession. (Clarke v. Hughes, 13 Barb. 152; Wells v. Prince , 9 Mass. 508; Wallingford v. Hearl , 15 id. 471; Tilson v. Thompson, 10 Pick. 362; Miller v. Ewing, 6 Cush. 34; Angell on Limitations, 364-378, and cases cited [and see C. C. P., in connection with Angell, 369]; Jackson v. Schoonmaker, 4 Johns. 390-402; Jackson v. Sellick , 8 id. 269; Jackson v. Johnson, 15 Am. Dec. 433, 449, and note; Jackson v. Mancius, 2 Wend. 360; Forgal v. Pirro, 10 Bosw. 113; Washburn, Real Property, 3d. ed., 113, 132, 303; Washburn on Easements, 114; Tyler on Ejectment, 923; Woodson v. Smith, 1 Head, (Tenn.) 276; Higgins v. Crosby , 40 Ill. 260; Foster v. Marshall , 22 N.H. 491; Pinckney v. Burrage , 31 N. J. L. 21; Blair v. Bland, 3 Munford, (Va.) 570.)
3. Tynan v. Walker in no way militates against these views, but is directly for us. That case was decided on the fact that under our system an administrator in contemplation of law is in esse, and entitled to the possession from the date of the death, and therefore the statute ran against him from that time. (Jahns v. Nolting , 29 Cal. 510-11; Ham v. Cunningham , 50 id. 364.) But suppose there had been an infant heir who had brought suit, instead of having an administrator appointed, as might have been done. (Updegraff v. Trask , 18 Cal. 458; Hart v. Robertson , 21 id. 348; Chapman v. Hollister , 42 id. 463-64.)
They must admit that in that case, for it is self-evident that the infant could not have been barred. How, then, could the mere appointment of an administrator bar the infant? This shows conclusively, that under the decisions the statute never runs against the heir, after an administration begins; and this on the simple ground that after that time, the heir has no right of action until the administration closes.
4. Nor does Cunningham v. Ashley , 45 Cal. 485, in any way militate against us. That case was expressly put on the ground that the statute expressly allowed and required the administrator to call to his aid and use the heirs' title in an ejectment, and that, therefore, the action should be conclusive on the title which was thus put into actual controversy. But the statute neither expressly nor impliedly says that the heir's title shall be affected when the administrator has in no way anything to do with such title, and does not use it or meddle with it at all. No one doubts that a guardian may bring an action for an infant, and in case he does so, that the infant will be barred, but if he fails to do so, the infant can not be said to be barred. So when an administrator brings or fails to bring an action.
5. But opposing counsel seek to draw comfort from the case of Meeks v. Vassault, 3 Sawyer, 206, and Judge Miller's opinion, in the same case, on appeal to the United States Supreme Court, 5 P. Coast Law Journal, 391. That case, however is entirely inapplicable to the case at bar, and even if it were not, it is a manifest misconstruction of our statute; and that, too, for many valid reasons, to which we now call the Court's attention.
In the first place, the Federal Courts deal more particularly with Federal Laws. It is not to be expected that they have that familiarity with the local laws of thirty-eight States which the Supreme Courts of those States have. This is strongly illustrated in this case, where both Judge Sawyer and Judge Miller state that the heir has a remedy against the administrator for the loss of the title to the land, when it is a fact that there is not and never was a statute in this State providing that the administrator should give a bond for the value of the land, but only for the value of one year's rents and profits, and yet upon this false assumption they substantially build their whole argument.
Hence the United States Supreme Court has always gracefully changed its decision construing the statutes of the State, when it had theretofore misapprehended the true meaning of such statute and had in the meantime been " set right" by the decision of the Supreme Court of the State. And their reports will show that the cases in which this has happened are by no means infrequent, and in no class of cases has it been more frequent than in the Statutes of Limitations. On the other hand, when a Supreme Court of a State has misapprehended and misconstrued a Federal statute, the United States Supreme Court never hesitates to set it right.
(1.) That case is inapplicable because there does not seem to have been any question of infancy involved or discussed. Indeed what is said in 3 Sawyer, 315, is entirely inconsistent with any question of infancy--for if an heir is to compel an administrator to sue or obtain a distribution, he could not be considered in default for not doing so while he was an infant.
(2.) Because the sections of our statute therein involved had nothing to do with adverse possession at all, but the time was to commence to run from a date, just the same as a promissory note. Great stress was laid upon this point by both Judge Sawyer (p. 216) and by Judge Miller (p. 394). Our Probate Act which was construed to read as follows:
" Sec. 190. No action for the recovery of any 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."
" Sec. 191. The preceding sections 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 at any time within three years after the removal of the disability."
It will be observed that if the sale is to be attacked at all, it must be done within three years after the sale, without reference to any adverse possession whatever. It runs as the time would on a promissory note, so long from a certain date, irrespective of when adverse possession commenced. What was said by either of the judges must therefore be limited to the facts in that case.
(3.) But if anything that was said by either of those Judges was intended to apply to the general Statute of Limitations, there was evidently a misapprehension in their minds as to the intent, and the true construction of such statute. We hope we will clearly make this appear from what follows.
(4.) Several authorities are cited by both Judge Sawyer and Judge Miller to the effect that where a trustee is barred, his cestui que trust is barred with him. This is true, because the law which deals with actions of ejectment does not recognize there being such a thing as an equitable title. When the legal title is gone (which is all the Court of law knows anything about), that of course is the end of it. Nor is the matter helped by the trustee thereafter conveying the legal title to the cestui que trust. The legal title being gone, it makes no difference whether the trustee conveys to the cestui que trust or to a stranger. In either case (the legal title being alone recognized), the grantee, whether he be cestui que trust or stranger, can acquire from his grantor no right of action which the grantor himself did not have. And this as we have said, results from the fact that the law recognizes but one estate and that the legal estate. Whenever that estate is vested in a party who has the present right of possession, the adverse possession will run against it. And it will be noticed that every single case cited to this proposition was a case where the trustee held the legal title. It was such cases of trust with which those authorities dealt, one and all.
Now is an administrator under our law such an trustee as that? Does he hold the legal title or does the heir hold it? This we will endeavor to answer.
(5.) In Beckett v. Selover , 7 Cal. 238-239, it was held that the administrator had no title whatever. The heir was held to have the whole estate both legal and equitable, subject only " to the lien of the administrator for the payment of debts and the expenses of the administration, and with the right of the administrator of present possession." " The lien he must enforce by the judgment of the Court." The learned Judge then goes on to prove that the administrator has no title whatever; that he has simply a lien, and a lien only, and that the heir is the full owner, just the same as any other owner, and that the lien the administrator has, is simply that which every creditor has. He says:
" If the title of the property of the intestate vested in the administrator it would be necessary for him, in case of real estate, to execute conveyances to the heirs after final settlement. And it is no objection to this view that under these probate sales, where properly conducted, the title of the purchaser comes from the ancestor, and not from the heir; the lien of the administrator is created by the act of the ancestor in creating the debt, and is paramount to the right of the heir. The heir takes by descent, the administrator gets his lien by virtue of prior contract. This contingent lien every man creates when he contracts a debt, and upon his death the lien attaches to all his property. The administrator is more the representative of the creditors than the heirs. In all suits for the benefit of the estate he represents both the creditors and the heirs; and in proceedings to sell property, he is not the sole representative of the heirs, but the moving party on behalf of the creditors." (2 Comst. 462.)
The case in Comstock's Reports is simply to the proposition that the administrator represents the creditors, and this seems to be the whole burden of the learned Judge's argument. And yet from this language it is sought to draw a conclusion that the administrator is the trustee of the heirs.
The whole policy of our statute is in accord with the idea above expressed--that the administrator is the representative of the creditors; that he is appointed to pay the debts; that possession is given him to aid him to accomplish that end, and that as soon as that end is accomplished, he is to step down and out, and let the heirs enter upon their title, which right of entry thereon up to this time is denied them. But as to being barred of their legal estate, because the administrator was a trustee, you might as well say that the heir's title was barred if a creditor had himself been entitled to possession until his debt was paid, on the ground that the creditor was the trustee for the heir.
Suppose the statute should say that a creditor should have possession of his debtor's land until his debt was paid; would that make him a trustee of the heir? In Janes v. Throckmorton , 57 Cal. 368, the question was where an intestate died owning an equitable title. His heirs at law sued the trustees for the legal title. It was objected that the administrator was entitled to the legal title. This was probably as fair a test as to who takes the legal title, as could be possibly imagined. It was held that the trustees should convey the legal title to the heirs and not to the administrator. The Court say:
" Are plaintiffs (the heirs) the proper parties to bring this action? On the part of the defendant (the trustee) it is argued that the administrator of the estate of Janes alone can bring it. * * * In Chapman v. Hollister , 42 Cal. 463, it is said: On the death of the ancestor his title to real estate passes to the heir or devisee, subject, however, to the right of possession of the executor or administrator for the payment of debts. (Probate Act, §§ 114, 194; Beckett v. Selover , 7 Cal. 215; Meeks v. Hahn , 20 Id. 627; Matter of Estate of Woodworth , 31 id. 604.) * * * The present action is brought to establish a trust and to compel defendant to convey the legal title to real estate to the plaintiffs as heirs at law of Janes. On his death his title, then an equity, passed to the heirs, as was held in the cases last cited."
The Court held that the heirs were entitled to both legal and equitable title. So in Brenham v. Story , 39 Cal. 188, which was the case where the Legislature attempted to authorize the administrator to sell, not for the payment of debts, but for the heir's own good. In other words, the statute sought to make the administrator a trustee for the heir. But the Court said no. The administrator was there simply and solely to pay debts, and not to operate for the heir; that the heir was the full owner of the property, and could not have the administrator forced upon him as his trustee.
(6.) We then see that the administrator is the trustee of no title whatever, either legal or equitable. That he, having been given--to quote from the cases just referred to--" the right of possession for the payment of debts," would be bound by a proper regard for the rights of the heir to take good care of the property, to commit no waste thereon, is no doubt true. The law casts on him precisely the same duties in that regard, that it casts upon the one in possession in favor of the remainder-man. But we all admit that a remainder-man would not be barred by an adverse holding of a third party.
(7.) Suppose the statute provided that the administrator should immediately on his appointment, sell to the highest bidder the right to the exclusive possession of the land during administration, and apply the proceeds to the payment of debts. Would it be denied that upon that sale being made, the heir would then be a remainder-man? And would not the law cast upon the purchaser the same obligations to take good care of the estate that it does on the administrator? Would one be more of a trustee of the heir than the other? And if the heir is a remainder-man in one case, why is he not in the other?
(8.) But the learned Judge of the Circuit Court says that the trespasser may not be able to get a title for a century by wrongly enjoying some one else's property. So he might not in cases of remainder. But the statute originally contemplated but one year to elapse before administration was ceased. And when it was found this expectation was disappointed, the statute was amended so as to give the heir the right of possession and set the Statute of Limitations to running against him. This was eight years ago, and three years ago the last adult heir in the State was barred when there had been an adverse holding and the heir had not commenced his action within the five years given him.
(9.) But says both Judge Sawyer and Judge Miller, the heir has a remedy. He may sue the administrator (on his bond of course). But the trouble is, there is no bond provided for by our statute except for twice the " value of the personal property and twice the probable value of the annual rents, profits, and issues of the real property." (Probate Act, 73, C. C. P. 1388.) No bond whatever as to the value of the real property. Why? Because the statute does not contemplate that the title thereto can be taken away from the heir, by any act of the administrator. And this view is strengthened by the statute forbidding a sale of real estate until an additional bond is furnished by the administrator for twice the probable amount that will be realized at the sale. Even if it were otherwise, what protection would there be? Take this case at bar. The patent issued in 1868. There was then a nominal administrator who never did anything, and who was discharged within the three years thereafter. Now he could not be made even personably responsible, for until five years had fully run there could be no title lost--and he was administrator but three years, so he did not lose it.
(10) But it is said, the heir might have compelled the administrator to have brought suit. That would be a novel doctrine. The authorities Judge Sawyercited to that proposition do not bear him out in such a case as this. As to the rents and profits the administrator could answer to the heir, that he had given bond for that, and it was none of his business whether he was in possession or not so far as the rents and profits were concerned. As to losing the title he could answer that there was no hurry, he could sue the last day if necessary and prevent the running of the statute. Even if the heir could sue the administrator to compel him to sue the trespasser, yet if the heir was a minor, he would have until after he was of age to compel the administrator to bring the suit.
(11) So it is said, the heir might have had the distribution made. But how could it be expected that an infant heir should do so. If this plaintiff was barred at all she was barred before she was thirteen years old.
(12) It is difficult to see how an administrator is any more a trustee for the heir than a guardian is for his ward. Both may sue a trespasser. And in case of litigation, the minor must appear through his guardian just as the heir must through the administrator. The litigation is equally binding on each. But the guardian does not own the title; neither does the administrator. The minor is not barred if the guardian fails to sue, neither is the heir. Indeed the guardian is specially appointed to take care of the minor, the administrator is appointed for the creditors, and if he represents the heirs at all, to any extent or in any degree, it is only incidentally, and as a matter of good faith which the law imposes upon him.
(13) If the administrator had become involved in litigation he had a right to use our title (not to own it.) He never has owned it. We have no title which he ever owned. We never received any title from him whatever. If so, when, where, and how? If then we are not suing on any title which the administrator ever had, how did the administrator ever lose it? How can a man lose that which he has not got? If we had to trace our title through the administrator, then if he was barred while he had the title we of course would be barred with him. But the administrator does not appear in our claim of title at all.
(14) This disposes of about all the suggestions given by either Judge Sawyer or Judge Miller. But there are other reasons why the plaintiff cannot be said to have lost her title by the Statuteof Limitations, and those we will notice before we leave this subject.
6. Let us apply the rule for which they contend, to this case. Let us name the time when plaintiff was only twelve years old, from February 26, 1871, to February 26, 1872; there was then no administrator. She owned the patent title. That title was not yet five years old; the defendant was in possession. And yet she could not sue. Why? Because our statute (as construed by Chapman v. Hollister , 42 Cal. 463, and cases therein cited) absolutely prohibited her from suing, because the administration had not been closed. But while the statute prohibited her from suing upon her title, it did not intend to compel her to lose her title by the adverse possession of some trespasser. It was not to enable trespassers to acquire title that that statute prohibited her from suing on her title while administration was unclosed. The statute speaks without any uncertain note on this point. Statute of 1850, page 346, Section 27 ( C. C. P., § 356), reads as follows: " When the commencement of an action is stayed by * * * statutory prohibition, the time of the continuance of the * * * prohibition is not part of the time limited for the commencement of the action." This very section was construed by the present Supreme Court in Hoff v. Funkenstein , 54 Cal. 235. And it was then held that while the party might have succeeded in having an action instituted, yet that the evident theory of our Statute of Limitations was that the party should have the full time " on any day of which he may, of his own volition, commence an action."
7. Upon the close of administration, says the statute (Probate Act, 289; C. C. P., § 1666), the heir or devisee has a right to enter upon the land and take possession thereof, and if necessary to " sue for and recover" the same from " any person having the same in possession." The title he has had ever since the death of his ancestor, but the right of entry upon that title has just now accrued, and having now accrued he should have a reasonable time to enforce it. And the statute says he shall have five years after his right to make entry (that is, to take possession) accrues to him.
C. C. Pro., § 320: " No entry upon real estate is deemed sufficient or valid as a claim, unless an action be commenced thereupon within * * * five years from the time when the right to make it * * * accrued."
Indeed the test of when a man is barred is always determined by the question as to when his right of entry accrued.
" Therefore, to determine whether or not the party is barred of his right to maintain an action of ejectment, it is requisite to determine when his right of entry accrued." (Angell on Lim. 374, § 369.)
8. Indeed a statute which allowed a person's property to be taken away from him by the adverse possession of a trespasser without giving him a right to sue, would certainly be depriving him of his property without due process of law, and would be unconstitutional. Nor can it be said that the wrong is cured by giving some stranger (whom it terms by name, administrator) the privilege of suing, since such stranger is required to give the owner no bond that he will sue; there is no administrator's bond for the value of the land; simply for the value of the rents and profits for one year, and the personal property. To quote from Judge Cooley (Const. Lim. 365):
" Every Government is bound in good faith to furnish its citizens all needful legal remedies," and while " it is not bound to keep its Courts open indefinitely for one who neglectsor refuses to apply for redress," yet " all limitation laws must proceed upon the idea that the party by lapse of time and omissions on his part, has forfeited his right to assert his title in the law."
And again on page 366: " All Statutes of Limitations, also, must proceed upon the idea that the party has had a right to try his right in the Courts."
9. If the statute had always allowed an heir to sue, then confessedly the plaintiff would not have been barred, for she has always been a minor. What kind of logic is this, then: that if the Courts were not open to her, she is barred, but if they were open to her she is not barred. Does not this seem not only inconsistent with the constitutional sentiments of Judge Cooley above expressed, but inconsistent with all common sense?
10. If this plaintiff was barred when the patent was five years old it is through no fault of hers. She was but a mere child, and even if an adult she could not sue, for the administration was unclosed. But the statute is certainly not so brutal as to divest an infant of her estate without some remedy for the loss. If she has a remedy, would the Court please point it out, that she may yet avail iherself of it? Shall she sue on the administrator's bond? Alas! there is no bond for the real estate, for none was ever required by the statute. Shall she sue the administrator on his individual responsibility? Which one shall she sue? If she sues Reed he will say he only held the administration a year or so and resigned long before the patent issued. Shall she sue Beach? He will answer that he resigned and was discharged before the patent was three years old, and that the title was still perfect and unaffected when he was discharged. Shall she sue Smith, the present administrator? He will answer he was not appointed until three years after the title was lost, if it had been lost at all. Where is the remedy of the administrator's responsibility which Judge Sawyer and Judge Miller assume to have been provided for by our statute, without ever having taken the trouble to read the statute to see.
If the law is to be so construed that an infant is to be held barred under such circumstances, then we must admit that children, mere infants, can, by the provisions of this wise (?) and humane (?) law, be divested of their estates, without their knowledge, without their fault, without compensation and without remedy. Laws are to be construed in accordance with the intention of the legislators passing them. If this law is to be thus construed it must be upon the ground that such was the intention of the legislators. In that case it is a wonder that when voting " aye" their tongues did not blister, and their lips parch, and the word stick in their throats. Must the law be thus construed? Is it not susceptible of receiving a more humane construction? Natural right would certainly demand it.
" When a statute * * * is equally susceptible of two interpretations, one in favor of natural right and the other against it, the former is to be adopted." ( C.C.P., § 1866.) " It would seem that this view (that the act or negligence of the administrator should not bind the heir) is supported by every principle of justice. It must be conceded that the negligence, favoritism, and fraud of administrators should be carefully watched. The administrator has no interest in preserving the estate for the heir." (Beckett v. Selover , 7 Cal. 241.)
And yet this is the case that is relied upon to establish that an administrator is the trustee of the heir, and that therefore his negligence binds the heir.
11. But there are three complete answers to the whole proposition irrespective of any of the propositions established hereinbefore. They will be stated separately.
12. On the first of January, 1873, the patent title had not been barred against any one--for it was not then five years old. On that day the Code went into effect, giving us for the first time the statutory right of ejectment--the statute then began to run against us. This clause was inserted in the Code for the express purpose of setting the statute in motion against the heir, even before the close of the administration. No other reason can be suggested. Immediately upon that Act going into effect, every heir was required to bring his action within the statutory time, or be barred. The converse of this is also true. The statute being set in motion against us individually, for the first time, we had the statutory time within which to bring this action. This we did, and therefore there is no bar.
Wherever the Statute of Limitations is brought to bear upon a right of action, (as it was when we were given the right to sue; of course the statute would begin to run against us then), the party has the full time mentioned in the Statute of Limitations in which to bring suit. (Lewis v. Lewis, 7 How. 776; Sohn v. Waterson, 17 Wall. 596.)
13. As we have just said, when the Codes went into effect, the patent was not yet five years old, and no one was barred.
At that time, even defendant does not claim he had any title by adverse possession. At that time, therefore, it was fully within the power of the Legislature to repeal the Statute of Limitations then existing. In Title 2, Part 2, of the Code of Civil Procedure which deals with the Statute of Limitations, we find a section reading as follows: " Sec. 362. This title does not extend to actions already commenced nor to cases where the time prescribed in any existing statute for acquiring a right or barring a remedy has fully run; but the laws now in force are applicable to such actions and cases; and are repealed subject to the provisions of this section."
It will be observed that the old Statute of Limitations is still kept in force for two classes of cases (in neither of which does the present one fall) viz: First; To cases where an action was actually pending. Second, To cases where the statute had completely run.
With those two exceptions, and subject to those two exceptions, the old statute is absolutely repealed. It is, as to every other case, swept absolutely out of existence; it is as to the non-excepted cases as if it never was. By the very terms of that section, it was, except as to the cases provided for in that section, swept out of existence. No rights of adverse possession depending upon it were saved, except those expressly mentioned. If any other section can be found seemingly inconsistent with this one, yet this one, being in the very title dealing with the Statute of Limitations, is to govern and control. (Political Code, § 4481.)
Nor was the title patent barred when the Civil Code went into effect, and that Code also saves our rights, even assuming the administrator has an estate in the land. This will readily be seen by quoting a few sections from that Code: Sec. 669. All property has an owner.
Sec. 678. The ownership of property is either: 1. Absolute. 2. Qualified.
Sec. 680. The ownership of property is qualified. * * * 2. When the time of enjoyment is deferred.
Sec. 688. In respect to the time of enjoyment, interest in property is either: 1. Present or future.
Sec. 690. A future interest entitles the owner to the possession of the property only at a future period.
Sec. 741. No future interest can be * * * barred by any * * * act of the owner of the intermediate or precedent interest nor by any destruction of such precedent interest by forfeiture, surrender, merger or otherwise.
II. The judgment was nothing more in law than a merely personal judgment, because it did not contain a description of any lands or even pretend to contain one.
Did the judgment amount to anything more than a personal judgment? Did it amount to a decree in rem; that is, a decree against a particular thing? It would seem too clear for argument that it did not, for the obvious reason that to be a decree against a particular thing, that thing must be described by the decree. As well proceed against a person upon a promissory note, without naming him, and expect to bind him, as to proceed against a particular thing, without describing it, and expect to bind it. But it is said that while the judgment does not even pretend to contain a description, yet it refers to certain deeds where a description may be found, and then it is sought to apply the maxim, " that is certain which can be made certain."
But we contend that the description should have been contained in the judgment itself, if the judgment was to bind the land, and that the maxim, from the very nature of things, can have no application to judgments in such matters.
In the first place, the very terms of the maxim exclude that idea. " That is certain which can be made certain" --by what? By evidence in an action. But a judgment is the end of an action. The law does not pronounce judgment upon the understanding that there is to be another action, trial and judgment, to make the judgment being rendered an operative judgment.
In the second place we have never yet been able, after a very long search, to find a case where the maxim was applied to a judgment. Consult Broom's Legal Maxims and Wharton's Legal Maxims, and you will find nothing even hinting that way. If the maxim is to apply at all, I suppose it must apply in full force. Admit it to apply at all and where would you, or could you, draw the line. For instance: " If a man make a lease to another for so many years as J. S. shall name, this is a good lease for years; for though it is at present uncertain, yet when J. S. hath named the years, it is then reduced to certainty." (Broom's Leg. Max., 556.)
So, we suppose, on this principle, a mortgage of such lands " as J. S. shall name" might be a good mortgage, yet who would contend that a foreclosure by that description would be good. Suppose, in the meantime, the additional element of certainty had occurred of J. S. having named the lands, would it be contended that it would be sufficient to allege that J. S. had named the lands (but without describing them) and have the judgment decree " such lands, as J. S. hath named," sold, with no further description?
If reference to a description merely is all that is required in a decree, then a reference to a description is all that is required by the Sheriff in his proceedings; for the moment you admit that the decree does not contain a description sufficient to sell by, you admit that it is insufficient as a decree against the land; for it is self-evident that if it is good enough as a description to bind the land by the decree, it is sufficient as a description in the Sheriff's proceedings. But how could a Sheriff sell with merely a reference to a description. He might be unable to find it. It might be to deeds which were lost. What is the Sheriff to do then? Make himself a Court, subpoena witnesses, take testimony, fine for contempt the refractory witnesses who refuse to answer him as to what they knew about the description in the lost deed, and finally render judgment as to what lands were described in the deed? Or it may be that the deed is in London or Japan, or Patagonia; what is he to do then? Make himself a Court again and issue depositions to those distant countries? Even then he may not know the precise person who has control of the deed. Or is he to issue a subpoena duces tecum to those far away individuals returnable before his mighty highness? And even when he got the deed it might in turn refer to another deed for description, and so on ad infinitum. Or is he to sell with no other description than the mere reference to the description, which the decree gives him? He can not sell by that description, for he must sell each lot or parcel separately if there is more than one. ( Code Civ. Pro., § 694.)
How can he know whether there are more lots than one, or what lots there are, by any light the decree gives him? He must give the purchaser a " particular description of the real property sold." ( C. C. P., § 700, Subd. 1.) Mark the words: He must give a particular description. How can he do that with nothing but a mere reference to a description in his possession? So he must post his notices in the township where the property is located. ( C. C. P., § 692, Subd. 3.)
But how is he to know where the township is with nothing but a mere reference to a description in his hands? So he must levy on the property ( C. C. P., § 691), which is done by filing a notice with the Recorder describing the land and posting a similar notice on the land itself. ( C. C. P., § 542, Subd. 2.) How is he going to post on the land without knowing where it is? Thus we see that by any test we can apply, such a judgment is in no way superior to and amounts to no other than a merely personal judgment. See also: Joseph v. Joseph's Legatees , 5 Ala. 280; Turner v. Dupree's Adm'r , 19 Ala. 198; Spence v. Simmons , 16 Ala. 828; Church v. Chambers, 3 Dana, 275 ( C. C. P., § 577); People v. Cone , 48 Cal. 429.
Foreclosure proceedings which simply refer to a deed for description amount only to a general money judgment. Such a reference might do in a deed or mortgage, which can be made certain by pleading proof and judgment, but it will not do in a complaint or decree, which are themselves the means by which uncertain descriptions are made certain. There must be some end to uncertainties, and we think the judgment is that end. (Clark v. Gage , 19 Mich. 512-515; Atwood v. Atwood, 22 Pick. 287; Flagg v. Bean , 25 N.H. (5 Foster) 64-65; Colby v. Collins , 41 Id. 305; Huddlestor v. Garrott, 3 Humph. (Tenn.) 630; Crow v. Wood, 13 Beavan, 271; McManus v. Stevens, 10 La. Ann. 177; Montrose v. Conner , 8 Cal. 344; Nolte v. Libbert , 34 Ind. 167; White v. Hyatt , 40 id. 385; Struble v. Neighbert , 41 Id. 344; Whittelsy v. Beall, 5 Blackf. 143; Gayle v. Singleton, 1 Stew. (Ala.) 571-572, 574; Jackson v. Rosevelt, 13 Johns. 96; Jackson v. Delaney , 13 id. 535; Peck v. Mallany , 10 N.Y. 509; People v. Cone , 48 Cal. 429-430; People v. De La Guerra , 24 Id. 78; People v. Hyde , 48 id. 431.)
It is urged that all these cases arose upon demurrer or appeal. This is not true. But if it were, what difference would that make?
A description is either sufficient or it is not. If it is, it is not the subject of attack by demurrer, appeal, or otherwise. If it is not, then it is no description.
JUDGES: Ross, J. McKinstry, J., Morrison, C. J., and Thornton, Myrick, and Sharpstein, JJ., concurred. McKee, J., dissenting.
OPINION
ROSS, Judge
In Bank. The action is ejectment, and the premises a part of a Mexican grant, for which a patent was issued by the United States Government on the nineteenth day of February, 1868. The plaintiff is the daughter and one of the heirs of S. J. Crosby, deceased. Crosby owned the land at the time of his death, which occurred March 29, 1859. When he died his daughter was but a little more than a month old. Crosby's possession of the property was not invaded during his life-time. Had it been, and had the Statute of Limitations been set in motion during that period, its running would not, of course, have been arrested by the subsequent disability of the plaintiff. But this was not the case. When Crosby died, his title to an undivided interest in the property descended to and vested in the plaintiff. She then became, with her co-tenant, entitled to its possession. But she was then a minor, incapable of vindicating or asserting her right. Around her, therefore, the law threw its protection. If there had then been an invasion of her possession, there can be no doubt that she would have been entitled to the statutory period of five years after attaining her majority within which to have asserted her right by action. ( C. C. P., § 328.) With the descent of the title came the protection of the law. What removed that protection? It is said that subsequent administration upon the estate of the ancestor did so. Administration upon that estate was had, although the precise date when it was commenced does not appear. Letters of administration were, however, issued to one Reed prior to the year 1860. Reed tendered his resignation of the office June 28, 1860, and it was accepted on the eleventh of August of the same year. Beach succeeded Reed as administrator by appointment made May 8, 1866, and he resigned April 2, 1870. From April 2, 1870, to January 3, 1876, there was no administrator; but upon the last-named day one Smith was appointed. During all this time the plaintiff continued a minor. What is relied on by the appellant as adverse possession of the premises commenced in the year 1866. The patent, as already said, issued February 19, 1868. At both of the last-mentioned dates there was an administrator of the estate of S. J. Crosby, deceased, in office, and the appellant's claim is, that as, under our law, the administrator alone was then entitled to the possession of the property, it was his right alone, as well as his duty, to have commenced an action for the recovery of the possession from the adverse possessor; that the Statute of Limitations commenced to run upon the issuance of the patent, and five years thereafter all rights on the part of the administrator, as well as of the infant heir of Crosby, became barred. If such is the necessary result of the provisions of law, it is a hard result, as must be apparent to every one. There is no provision of law requiring the administrator to give security based upon the value of the real property of the deceased.
Under the law in existence when the alleged ouster in this case occurred, and when it is claimed the Statute of Limitations began to run, the sole right to the possession of the property was in the administrator; and prior to January 1, 1873, the heir could not maintain an action for the recovery of the possession of the property, even though there was a vacancy in the administration. (Chapman v. Hollister , 42 Cal. 462.) So that the result of appellant's position would be to divest the title of an infant heir by means of an adverse possession, commenced and held at a time when the heir was not only incapable of asserting her rights by reason of infancy, but was absolutely prohibited by law from asserting them, and when, too, there was no one in existence charged with the right or duty of protecting them. The circumstances of the present case well illustrate the wrong that would result from such a construction of the law.
At the time it is claimed the Statute of Limitations began to run--February 19, 1868--the plaintiff was less than ten years old. It is true there was then an administrator of the estate of her ancestor, in the person of Beach, and that he could have commenced and maintained an action against the intruder for the possession of the property. But on the second of April, 1870, a vacancy in the administration occurred, and that vacancy continued until after the lapse of five years from the nineteenth of February, 1868. During this time there was no one in existence capable of bringing the action. There was no administrator, and the plaintiff was not only disqualified by reason of her minority, but she was prohibited by law from doing so. She was likewise legally incompetent to cause the appointment of an administrator to represent the estate, as well as to compel action, if there had been one. It would be a law with very little justice in it that would permit an infant's property to be divested by adverse possession held under such circumstances. Fortunately, we are convinced, after careful consideration, that the terms of our statute do not compel us to so hold. Engrafted upon the provisions prescribing the time of commencement of actions for the recovery of real property, is an exception in these words: " If a person entitled to commence an action for the recovery of real property, or for the recovery of the possession thereof, or to make any entry or defense founded on the title of real property, or to rents or services out of the same, be, at the time such title first descends or accrues, either:
" 1. Within the age of majority; or 2. * * * The time during which such disability continues is not deemed any portion of the time in this chapter limited for the commencement of such action, or the making of such entry or defense, but such action may be commenced, or entry or defense made, within the period of five years after such disability shall cease, or after the death of the person entitled who shall die under such disability; but such action shall not be commenced, or entry or defense made, after that period." ( C. C. P., § 328.)
If it be true, as it undoubtedly is, that had the plaintiff's possession of the premises been invaded the day the title thereto first descended to her--when she was less than two months old--the time elapsing between the ouster and the attainment of her majority could not have been deemed any portion of the time limited for the commencement of an action by her for the recovery of the possession, but that she would have been allowed the period of five years after the removal of her disability within which to have commenced such action, no reason is perceived why the same is not also true where the adverse entry takes place on any other day during the existence of the disability. Precisely the same reasons for the protection intended by the law exist in the one case as in the other, and we are persuaded that where the protection once attaches it continues until the disability is removed.
Our conclusion on this branch of the case is strengthened by the consideration of other provisions of our statutes.
As observed already, prior to January 1, 1873, the heir was prohibited by statute from maintaining an action for the recovery of the possession of the property (the title to which was in her), pending administration upon the estate of the ancestor, and this, though there was a vacancy in the administration. Yet the statute, in prescribing the requirements of the administrator's bond, made no provision for security on his part for the protection of the interest of the heir in the real property of the estate. It is not to be supposed that had the Legislature intended the Statute of Limitations to run against the title of the heir, whom it prohibited from suing for the possession, because it conferred on the administrator that right temporarily, would not have required of the administrator adequate security for the protection of the rights of the heir.
A further statutory provision in support of the same view is found in Section 356 of the Code of Civil Procedure, which reads:
" When the commencement of an action is stayed by injunction or statutory prohibition, the time of the continuance of the injunction or prohibition is no part of the time limited for the commencement of the action."
The statutory prohibition against the maintenance by the heir of an action for the recovery of the real property of the estate was removed January 1, 1873, by the taking effect of the Codes, Section 1452 of the Code of Civil Procedure, providing that " the heirs or devisees may themselves, or jointly with the executor or administrator, maintain an action for the possession of the real estate, or for the purpose of quieting title to the same, against any one except the executor or administrator; " and on April 16, 1880, this section was amended by adding the words: " But this section shall not be so construed as requiring them so to do."
Even if it could be held that the Statute of Limitations commenced running against the plaintiff on the first day of January, 1873, when the statute for the first time conferred upon her the right to maintain an action for the recovery of the property, it had not fully run on the twenty-first day of April, 1877, when the present action was commenced. But, for the reasons already stated, we are satisfied that the plaintiff's rights were saved by the provisions of Section 328 of the Code of Civil Procedure, and that she was lawfully entitled to the period of five years after attaining her majority within which to assert them.
Another defense relied on to defeat the action is title claimed to have been acquired by the defendant through certain foreclosure proceedings. The land directed to be sold is thus described in the decree of foreclosure, as also in the complaint in the action and in the mortgage itself:
" All of that part of the rancho situated in the county of Santa Clara, in the State of California, called the Santa Rita, described in the three following deeds, to wit: In a deed dated February 15, 1865, from Secundino Robles and Antonia Garcia, his wife, Miguel Espinosa, Jesus Robles, his wife, to Samuel J. Crosby, filed for record in the County Recorder's office of Santa Clara county, on the sixteenth day of February, 1855, and recorded in Book 'H' of Deeds, page 405, and re-recorded March 10, 1855, and in Book 'G' of Deeds, page 477; also, a deed dated May 5, 1855, from one Teodoro de Jesus Robles to Samuel J. Crosby, filed for record in said Recorder's office May 7, 1855, and recorded in Book 'G' of Deeds, page 509; and also, a deed dated this tenth day of March, 1856, from Don Teodoro de Jesus Robles to Samuel J. Crosby, filed for record in said Recorder's office on the eleventh day of March, 1856, and recorded in Book 'K' of Deeds, page 188, to which deeds reference is made for a more particular description of the premises."
It will be thus seen that the only description of the property directed to be sold is such as may be found in three certain deeds, to which reference is made. Neither in the decree, in the complaint, nor in the mortgage itself, is there any pretense of a description of the property, but only a reference to certain deeds for a description. Assuming that the deeds could be found, or, in the event that they could not be found, that reference could be made to the record of them, the descriptive calls there found might prove, on examination, to be wholly indefinite, or so vague as to leave it doubtful what lands they included.
The primary purpose of an action of foreclosure is to enforce a lien upon certain specific premises. The first step in that proceeding, under our system, is the filing of a complaint. That complaint must contain a description prima facie at least sufficient for the identification of the property. There must be such a basis for the decree that is to follow to rest on. While it is generally sufficient to describe the premises as they appear in the mortgage itself, this is only so when the mortgage itself contains a description--not where, as here, the mortgage contains no description, but only a reference therefor to other instruments, from which a description may or may not be obtained. (2 Jones on Mortgages, Section 1,462, and authorities there cited.) If the description contained in the mortgage involved in Overfeldt v. Crosby was susceptible of being made definite and certain, that ought to have been done in the action foreclosing the mortgage. The decree should have put an end to all such uncertainties, and should have described the land directed to be sold with sufficient certainty for its identification. The degree of certainty sufficient in a deed of conveyance, would, as said by Chief Justice Shaw, in Miller v. Miller, 16 Pick. 215, often be insufficient in a legal process, because in the former an indefinite description may be made good by evidence aliunde .
In Clark v. Gage , 19 Mich. 507, which was a proceeding instituted to recover the possession of land in a summary manner, pursuant to the statutes of the State, the Court referred to the cases of Miller v. Miller, supra ; Atwood v. Atwood, 22 Pick. 283; and Flagg v. Bean, 5 Foster, (N. H.), 49, and said: " Without adopting the extreme view that the description required in a complaint should be so explicit as to enable the Sheriff to deliver possession without reference to any extrinsic facts, it is believed that the principle prevading these cases is a clear and correct authority for holding that the certainty requisite in a complaint in this class of cases is not attained by a bare reference to a deed or other instrument; and further, that such reference when made will not have the effect to help an otherwise insufficient description. It is not possible to define with perfect exactness the kind of description which will suffice in all cases, but it may be stated as a general rule that it should be so precise as prima facie to give to the defendant who is to answer to the complaint, the tribunal appointed by law to decide upon it, and the officer who may be required to put a complainant in possession, a distinct idea of the very premises. The degree of precision which is here indicated may be attained, and yet from the nature of the subject-matter and its surrounding objects, the officer on executing a writ of restitution or possession may find it necessary to instruct himself in local circumstances in order to act correctly. But any necessity of that kind would result from unavoidable difficulties belonging to the subject-matter, and not from any defect in the proceedings on paper."
There is as much necessity for a description of the property sought to be charged with a lien as there is in a case the object of which is to recover possession of the property; and as much necessity for a description in the decree as in the complaint. (See, also, Freeman on Judgments, Section 54; Lawless v. Barger, 9 Bush (Ky.), 665; Runyon v. Darnall , 10 id. 67; Struble v. Neighbert , 41 Ind. 344.)
Our conclusion is that the defendants acquired no title under the foreclosure proceedings of Overfeldt v. Crosby .
Whether plaintiff could recover the entire premises if defendant Clark had by adverse possession extinguished the title of the plaintiff's co-tenant, and himself thereby acquired title to the interest theretofore owned by the co-tenant, is a question that need not be considered in this case, since it does not appear, either in the findings or proof, that Clark has ever held adverse possession of the premises as against the plaintiff's co-tenant.
The bill of exceptions recites:
" The only evidence in addition to the documentary evidence upon which the findings are based, as to the adverse possession of the defendant Clarke, or as to any title or claim of title under which he held and occupied, was the following testimony of the defendant Jeremiah Clarke: The defendant, Patrick Dowd, entered in possession of that portion of the premises in dispute, which was in his possession at the commencement of this action, under a lease from me about the first day of October, 1866, and he has remained in possession ever since. He has never surrendered the possession since his first entry under the lease from me. The description in the deeds referred to for description in the decree in Overfeldt v. Crosby, embraces the same premises described in the Sheriff's deed to Overfeldt, and all the premises sued for in this case, except the 'Mayfield Farm.' Previous to my purchase from Overfeldt, I had adverse possession of a portion of the land not in the possession of S. J. Crosby. My recollection does not serve me whether, in my transaction with the administration of Mr. Crosby's estate, I recognized the eighty acres which I had the possession of before, and which was not in possession of Crosby in his life-time, as part of the land for which I paid him rent or not. But all my relations with the administrator were perfectly friendly, and I never claimed adversely to anything he claimed. I paid him such rent as he proposed.
" The eighty acres spoken of was a piece that Mr. McGarrahan had in possession and kept Crosby out of. I received possession of this eighty acres from defendant Dowd in the fall of 1858. I do not recollect whether I took any written lease from Reed, the administrator of the Crosby estate, or not. Nor do I recollect that anything was said about this eighty acres. It is very likely it was included in the lease from Reed, and that I paid him rent for it. I do not know that he or I thought about the eighty acres that McGarrahan and Dowd had held adversely to Crosby, the possession of which I received from Dowd. We simply agreed how much I was to pay, having reference to the time when possession should be taken under the Overfeldt purchase."
Judgment and orders affirmed.
DISSENT:
McKEE
McKee, J., dissenting:
I concur with the views expressed in the prevailing opinion upon the question of the Statute of Limitations; but I dissent from those expressed upon the subject of the description of the mortgaged premises in the decree of foreclosure. It is conceded that the description of the land in the mortgage, and in the foreclosure proceedings, was sufficient (Vance v. Fore , 24 Cal. 435; Penry v. Richards , 52 Cal. 672; Stanley v. Green , 12 Cal. 148; Caldwell v. Center , 30 Cal. 539; Kimball v. Semple , 25 Cal. 440); and I do not understand how its transmission into the decree of foreclosure changed it into a nullity.