A statement of this case appears in Swinehart v. Turner,38 Idaho 602, 224 P. 74, the present action being based upon the amended complaint filed after this court had decided that the prior complaint stated a cause of action.
There was evidence to support the finding of the lower court that notices were published and posted according to the statute. Raising the question of the failure of the probate court to require an additional bond upon the sale of the property would constitute, so far as this action is concerned, a collateral attack insufficient upon which to predicate a conclusion that the sale was thereby void. *Page 467
On the death of either spouse, the community property being liable for the community debts, the administration of the estate draws to it the liquidation and settlement of the entire community estate for the purpose of satisfying the community debts which makes it necessary for the probate court to assume jurisdiction over and administer both moities of the community fund. (Ryan v. Fergusson, 3 Wash. 356, 28 P. 910; 31 C. J. 193, 1339, notes 63 and 64.) The Washington statute construed by the Washington cases cited in the text is sufficiently similar to the Idaho statute to make the reasoning of the Washington decisions applicable to our statute.
After the real estate was purchased at the probate court sale by the son of the administrator it was sold to a third party, Mrs. Duffy, one of the respondents herein. While the sale to the younger Turner might be prohibited by C. S., sec. 7655, providing that no executor or administrator must, directly or indirectly, purchase any property of the estate he represents, nor must he be interested in any sale, such section, identical with sec. 1578, Cal. Code Civ. Proc., would not necessarily affect the title of respondents Duffys.
In considering this section in a similar action this court held that a purchase by the wife of the administrator, unless down to be for the separate estate of the wife, would make the sale voidable if not void. (Estate of Blackington, 29 Idaho 310,158 P. 492.) The California court in French v. Phelps,20 Cal. App. 101, 128 P. 772, construing Code Civ. Proc., sec. 1576, one of the cases cited in Estate of Blackington, supra, held that a purchase by an executor of the interests of legatees, though prohibited by the code, is not void, but only voidable. (Estate of Richards, 154 Cal. 478, 98 P. 528; Boydv. Blankman, 29 Cal. 20, 87 Am. Dec. 146; Burris v. Kennedy,108 Cal. 331, 41 P. 458.)
As said in Burris v. Kennedy and Boyd v. Blankman, supra, such conclusion was reached for the protection of innocent purchasers.
The court in his twenty-fourth finding of fact found in effect that the Duffys were innocent purchasers, were free from fraud, and had no knowledge of the relationship of *Page 468 the Turners with the appellant or with the estate. This finding was amply supported by the evidence and there is no evidence contrary thereto. The action was one in equity seeking a return of the property and that the deeds executed to the Turners and to the Duffys be declared null and void and title be restored to appellant. While a purchase by a representative at his own sale is voidable, a deed from him conveying the property to abona fide purchaser for a valuable consideration will pass title, and after such a conveyance the original purchase will not be set aside. (24 C. J., sec. 661, p. 176.)
"A conveyance made by the administrator to himself isipso facto void, without regard to section one hundred and ninety-three, for it bears its own invalidity upon its face. But the conveyance to a third person after a sale to him, and a confirmation of the sale, although secretly made for the use of the administrator, gives such person a prima facie title to the land, and the invalidity of the title is made to appear, upon the fact being ascertained and determined in the proper Court, that the purchase was made by the administrator perinterpositam personam. Before that fact is determined there would seem to be little if any doubt that the third person who had taken the title for the administrator could pass it to abona fide purchaser for a valuable consideration, without notice of the fraudulent purchase." (Boyd v. Blankman, supra.)
There appears to be no question but that the Duffys werebona fide purchasers for a valuable consideration, and that they had no knowledge or notice of a fraudulent purchase by their grantor, if in fact the purchase was fraudulent, and therefore the sale to them will not be set aside.
Such holding renders it unnecessary to consider the other errors assigned.
The judgment is affirmed. Costs awarded to respondents.
Wm. E. Lee, C.J., and Budge and T. Bailey Lee, JJ., concur.
Petition for rehearing denied. *Page 469