A demurrer to the plaintiff's complaint was sustained by the district court on the grounds that said complaint "does not state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendant." Judgment was given to the effect that the plaintiff recover nothing from the defendant, and that the defendant recover his costs of the plaintiff, taxed at the sum of three dollars. This appeal is taken from the judgment and from the order sustaining the demurrer.
It appears from the complaint that said William Price died intestate in October, 1897, at Washoe county, State of Nevada, the place of his residence; that said Albert F. Price was duly appointed administrator of the estate of said deceased by the district court of said county, and that he duly qualified and entered upon his duties as such administrator; that in the year 1894 said William Price borrowed $1,000 of defendant, a resident of said county, and then and there executed to defendant his promissory note therefor, and thereupon, to secure the payment of said note, executed to the defendant a mortgage on a certain section of timber land belonging to said Price containing 640 acres, and situated in Nevada county, State of California; that in January, 1897, default having been made in the payment of said note, Price, at the request of the defendant, executed and delivered to him, at said Washoe county, a deed of conveyance for said land and premises; that said deed was absolute in form, but executed by Price and received by the defendant only as security to secure the payment of said promissory note, and other sums advanced by the defendant on account of said land; that said deed was duly recorded in the office of the county recorder of said Nevada county, State of California, on the 9th day of January, 1897; that at the time of the execution of said deed and at the date of the death of William Price *Page 217 said land was heavily timbered with trees suitable for the manufacture of lumber, sawed timbers, and firewood; that said land, with the timber standing thereon, was worth at said dates $12,000; that the defendant, since the death of said Price, and without the permission of any one representing said estate, and without authority from any source, willfully entered upon said land, erected thereon a sawmill, cut down a large number of the trees standing on said land, manufactured the same into lumber and sawed timbers, removed and carried said lumber and sawed timbers away from said land, and. converted the same to his own use; that said lumber and timbers manufactured, removed, carried, and converted as aforesaid by the defendant were and are of the net value of $6,000; that there is due the defendant on said promissory note, and for certain payments made by the defendant on account of said land, the sum only of $1,700 in the aggregate. The plaintiff prays for judgment for treble the said sum of $6,000, less the said sum of $1,700, and for costs of suit, for a decree requiring the defendant to surrender to plaintiff said promissory note, and to execute, acknowledge, and deliver to him, as such administrator, a conveyance of said land, and for general relief.
It is said in the decision on demurrer: "This is an action on the part of Albert F. Price, as administrator of the estate of William E. Price, deceased, appointed in the district court of the Second judicial district of the State of Nevada, in and for Washoe county, against M. E. Ward, a resident of this jurisdiction, to obtain a decree of this court declaring a deed executed in this jurisdiction by William E. Price, in his lifetime, of property situated in Sierra [Nevada] county, State of California, a mortgage; to compel a conveyance of said property to said Albert F. Price, as administrator; and for triple damages for waste committed on said property by said defendant."
It is further said: "Taking all of the allegations of the complaint as true, it simply amounts to a declaration that this property is the property of the estate of William Price, deceased, in the State of California, subject to administration in that state, and gives a right of action, not to the administrator appointed in the State of Nevada, but to the *Page 218 administrator appointed, or that should be appointed, in the State of California. The claim for damages for waste rests upon the same basis."
That said deed, in effect, is simply a mortgage, under the allegations of the complaint, is not controverted, and needs no citation of authorities. That some one is entitled to a decree declaring it to be a mortgage seems clear. It seems clear that the defendant is liable to account to some one, in some court, for the net value of said lumber and sawed timber that he removed from the mortgaged premises and converted to his own use, alleged to be the sum of $6,000. It likewise appears that some one is entitled to a personal judgment against the defendant for the difference between said net value of $6,000 and said $1,700 due from said estate to defendant, and to a conveyance of said land from the defendant, so as to put the title in the true owner, the estate of William Price, and to have said promissory note given up. To recover the net value of said property so converted, or a judgment for the difference between said value and the $1,700 due the defendant, the action would have to be prosecuted in a court having jurisdiction of the person of the defendant.
No court in the State of California can acquire jurisdiction of the person of the defendant in the State of Nevada, the place of his residence, by the service in this state of any process or notice that it may issue. We cannot presume that the defendant would voluntarily appear in such action and submit his person to the jurisdiction of such court. An administrator appointed in California could not maintain such an action in a court in the State of Nevada. If such action cannot be maintained in a Nevada court, then the defendant may retain said lumber and timber, or the proceeds of the sale thereof, to his own use, although, as shown by the complaint, and admitted by the defendant, as the case now stands, the same is not his property.
In Edwards v. Bollard, 14 La. Ann. 362, it is held that, although no real action would lie in Louisiana for lands sold in Mississippi, yet a suit brought to recover the proceeds of those lands from a defendant domiciled in Louisiana would fall within the jurisdiction of the Louisiana courts. In most of the states, under the common law and the statutes, the *Page 219 real estate of the deceased person descends directly to the heir or devisee, without passing through the custody of the executor or administrator. Upon this rule counsel seems to base his contention that the plaintiff could not maintain an action against the defendant on any cause accruing with respect to real estate after the death of the intestate, even though the property was situated in this state; that the right of action would belong solely to the heir or devisee. But in several of the states, including Nevada, California, Alabama, and Minnesota, the personal representative is entitled to the possession and control, for the purpose and during the term of the administration, of the real as well as the personal property of the decedent. (Woerner, Admn. 337; Stats. 1897, p. 119.)
For particular purposes the letters of administration relate back to the time of the death of the intestate, and vest the property in the administrator from that time. On this principle an administrator may maintain trespass for injuries to the goods of the intestate committed after such death, and before his appointment. (Woerner, Admn. 173.)
And where the administrator, under the statute, is put into possession of the real estate as well as the personal estate, any action necessary to protect the same against wrongdoers, or to recover damages for injuries thereto, including ejectment for possession, must lie in favor of the administrator. (Woerner, Admn. 293, and cases cited in note 2.)
When he has properly asserted his right to the possession, he may maintain possessory action in his own name, even against the heirs or devisees, or recover the rents, incomes, or profits, or for injury to the land or anything severed from it, or for injuries committed before he took possession, and after the death of the decedent. (Woerner, Admn. 337.)
"An executor or administrator may maintain an action to recover timber logs cut and removed by a trespasser from the lands of the estate, although the heir or devisee may also maintain an action on failure of the personal representative to assert his statutory rights." (Leatherwood v. Sullivan, 81 Ala. 458, 1 So. 718.)
"A personal representative who has taken possession of the real estate of the decedent can maintain an action for injuries *Page 220 to such realty committed post mortem decedentis. This is so even if the injuries were committed before be took possession, and before his letters of administration were granted." (Noon v. Finnegan, 32 Minn. 81,19 N.W. 391.)
"If the premises are vacant and unoccupied, the bringing of such action would be equivalent to taking possession." (Noon v. Finnegan, 29 Minn. 418, 13 N.W. 197.)
"The whole estate, real and personal, under our system, is assets, and may be, if required, applied to the payment of the debts of the estate." (Washington v.Black, 83 Cal. 295, 23 P. 300.)
I think said contention of counsel, and the inference sought to be drawn therefrom against the rights of the administrator in this case, are without merit.
It is argued by the trial court and by counsel that a decree declaring said deed to be a mortgage, and requiring the defendant to execute a deed to the plaintiff by the district court of Washoe county, would be meddling or interfering with the devolution of the property of the estate in the state where it is located, and that the courts of that state would disregard such decree and deed, and that the defendant would be still liable to an action for waste by an administrator appointed in California. The answer to this contention is:
First — That such deed would in no manner meddle with the devolution of the property of the estate situated in California, or interfere with the administration of the estate there. A deed from the defendant to the plaintiff as administrator would simply take the title out of the defendant and place it in the plaintiff as administrator, showing that the property belonged to the estate of the deceased, whereas it now appears of record in the recorder's office of Nevada county, Cal., to belong to the defendant. It would form the basis for, and facilitate, the administration of the estate of William Price in that state.
Second — There would be no occasion for the administrator, when appointed in California, to bring a suit to have said deed to the defendant decreed to be a mortgage, and thus determine the true ownership of said land.
Third — Such administrator could not recover judgment against the defendant for waste, or for the value of said lumber *Page 221 and timbers converted as aforesaid, unless the defendant voluntarily placed himself within the jurisdiction of a California court.
The contention that the courts of California would pay no attention whatever to any such deed from the defendant is simply an assumption of counsel. It seems well established by the authorities cited by appellant's counsel that, when the court has acquired jurisdiction of the parties in a matter of proper equitable cognizance, it may, by actingin personam, compel the conveyance of interests in real property, and administer other relief in the furtherance of justice, notwithstanding the property or interest involved may be situated without the state.
From the allegations of the complaint, it appears that the defendant has unlawfully appropriated a portion of said property of said estate. The deed prayed for would be a means to prevent further unlawful appropriation, and preserve the remainder of said property to said estate, which equity and good conscience demand.
That the complaint shows that some one is entitled at least to recover a personal judgment against the defendant for said value of said lumber and timbers, less the said sum due the defendant and a decree declaring that said deed to defendant is a mortgage, and requiring him to execute a deed to said land, and to give up said promissory note, I think cannot be reasonably disputed. The vital question in the case is, is the plaintiff entitled to such a judgment and decree? If so, he can prosecute this action therefor. The moneys collected on such judgment by the plaintiff would properly be assets of said estate, and subject to the payment of resident and non-resident creditors of the intestate who have presented, or who may present, their claims in pursuance of the provisions of the statute.
The policy of the law in every state is to subject all the property of the decedent, real and personal, to the payment of the creditors of the decedent, except certain reasonable exemptions for the benefit of his family. If the plaintiff cannot maintain this action to recover such judgment, then the heirs alone may sue the defendant, and recover the value of said lumber and timber for their own use, and deprive all *Page 222 of said creditors thereof, in contravention of said policy; for, if the administrator could compel the heirs to account for the moneys collected of the defendant for the value of said property, I see no reason why he may not maintain the action against the defendant for said value. Such judgment in favor of the plaintiff would inure to the benefit of all creditors of the deceased, and to all his heirs, in manner contemplated by the law, and would be no injury to any one. And the deed prayed for would benefit all parties who have any interest in the estate situated in California, by placing the title beyond dispute in the estate there, and thus aid in the prompt administration thereof, while, as I think I have shown above, the defendant can be in no manner injured in any of his rights, or subjected to a second recovery for the value of said property so converted by him.
The plaintiff is liable for the payment of said promissory note so far as anything appears to the contrary, and if he has not the legal capacity to maintain this action he has no defense against said note. He could not properly set up as a defense in an action on the note by the respondent any of the matters contained in the complaint herein. The respondent may then retain said lumber and timber to his own use without accounting to the plaintiff therefor and compel the plaintiff to pay said note if there be sufficient assets in his hands.
I am of opinion that Albert F. Price, as the legal representative of the intestate, has the right to maintain this action for the recovery of a judgment and decree above indicated and that it is his duty to do so in the interest of the creditors of the decedent and all persons having an interest in said estate.
I am of opinion that the order of the district court sustaining said demurrer should be overruled and the judgment reversed. *Page 223