In the Court below plaintiffs had judgment, and both the defendants and intervenors have appealed therefrom, making the sixth time that the matters pertaining to said estate have appeared in this Court for judicialconsideration; Haynes v. Meeks , 10 Cal. 110; Haynes v. Meeks , 20 Cal. 288; Meeks v. Hahn , 20 Cal. 620; Estate of Harlan , 24 Cal. 182; Pcople v. Senter , 28 Cal. 502. From a review of those cases, it seems safe to say that this Court has settled as res adjudicata the following propositions: First, That George Harlan died intestate in August, 1850, in Santa Clara County, and that the Probate Court of that county had jurisdiction over his estate. (Estate of Harlan , 24 Cal. 182; People v. Senter , 28 Cal. 502.) Second, That Henry C. Smith was administrator of said estate. (Haynes v. Meeks , 10 Cal. 110; Haynes v. Meeks , 20 Cal. 288; Meeks v. Hahn , 20 Cal. 620.) Third, That said Smith's sale of the premises made by him as administrator in 1853, was by reason of irregularities in his petition to the Probate Court, wholly null and void. (Meeks v. Hahn , 20 Cal. 620, and authorities therein cited.) Fourth, That neither the heirs nor their vendees could maintain ejectment while said Smith remained in office as administrator. (Meeks v. Hahn , 20 Cal. 620.) These principles, having been judicially determined by this Court, have doubtless become thelaw of the case. (Davidson v. Dallas , 15 Cal. 75; Phelan v. San Francisco , 20 Cal. 39; Haynes v. Meeks , 20 Cal. 288; Hihn v. Courtis , 31 Cal. 398.)
The intervenors accept the situation as the same has been made by the Court in the several cases above referred to, and base their right of recovery as against the plaintiffs on the grounds that this property has already been administered upon by Smith, who has been duly discharged as administrator, and that there is neither law nor precedent for keeping the heirs out of the possession of their property for the purpose of going through the farce of a second administration simply for the purposes of distribution, when the same is already vested in fee simple absolute in owners well known, fully ascertained, and settled as to persons, names, shares, and estates. (Cochrane v. Thompson, 18 Texas, 652; Hart v. Robertson , 21 Cal. 346.)
JUDGES: Sanderson, J. Neither Mr. Justice Shafter nor Mr. Justice Rhodes expressed an opinion.
OPINION
SANDERSON, Judge
The language of the one hundred and ninetieth section of the Probate Act 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."
Whether this language embraces sales which are made under orders of the Probate Courts which are void for the want of jurisdiction or only such sales as are merely voidable, is the question.
There is nothing in the policy or language of the statute which excludes void sales from its operation. The policy of the statute is to quiet titles to real estate sold by order of the Probate Courts, in view of that policy, merely, there can be no distinction between sales which may be termed void for the want of jurisdiction, and those which are voidable only. Nor is there anything in the language of the statute which creates such a distinction. The claim that such a distinction is created by the phrase " under the provisions of this Chapter" cannot be sustained. To so hold would be to nullify the statute, for if, as suggested, we read the phrase as meaning " according to the provisions of this Chapter," the limitation would be confined to " sales made according to the provisions of this Chapter," that is to say, to sales in all respects valid, as to which, for obvious reasons, there can be no occasion for a Statute of Limitations. To the phrase in question there is added no qualification, and hence if it restricts the limitation at all it excludes all sales which are not " according to the provisions of this Chapter," which includes voidable as well as void sales. So the defendant in every case would be compelled to allege and prove a valid sale before he could invoke the protection of the statute; or, in other words, he must show that he stands in no need of protection in order to obtain protection. (Holmes v. Beal, 9 Cushing, 227; Scott v. Hickox, 7 Ohio State R. 90.) We think the statute applies to all sales, void as well as voidable, made by Probate Courts, of real estate belonging to persons who have died since the passage of the Probate Act.
Under the foregoing view, it becomes unnecessary to consider the other questions involved in the case, or the case made by the intervenors.
Judgment reversed and a new trial granted.