(dissenting). — I think the view which the court takes of the actions of the principal respondents in this case, is entirely too charitable. The opinion makes it appear as though Friday and the Ruckers had been mere passive movers in the transactions which led up to the practical annulment of the will of Frskine D. Kromer, and the despoiling of his children of the property which their father had devoted, first, to their residence and maintenance, and lastly to the use of his son Victor. Kromer, Sr., died in 1885, and his widow accepted the bequest made to her, and suggested no claim of interest in her for more than four years. Meanwhile the will was proven, administration had, and distribution made in accordance with the terms of the will. In 1889 the’ Ruckers appeared and by their urgency and offers succeeded in moving the guardian to apply for an order of sale. They had already bought up all of the surrounding lands, and were exceedingly anxious to acquire the Kromer tract which was the key to the situation, commanding as it did the principal water front in the present city of Everett. To bring about the application of the guardian to sell they put $150 into the hands of his attorney to cover the costs of the proceedings, and agreed to bid $2,000 for the land. The bait took, and the application was made. At this time there was no occasion for selling, as the family had the land to live on, and the guardian had money enough in his hands to last nearly two years. Moreover, there was no legal warrant whatever for selling the land under any circumstances, since' its condition was fixed by the will.
The interference of the late Mrs. Kromer had the effect to postpone the proceedings, but her attempt to secure recogni*644tion from the probate court was a proceeding without color of legality, since that court had long since lost jurisdiction of the matter of distribution by its final decree of distribution which was unappealed from. Any order which that court might have made in the matter would have been wholly void. So, also, the appeal to the superior court could and did determine nothing, since on appeal the latter court had no power to determine a matter not within the jurisdiction of the probate court; all that the superior court could do was to dismiss the appeal for want of jurisdiction in the probate court over the subject matter. The net result of these judicial performances was to leave the entire estate where the will and the decree of distribution placed it, without a valid pen-scratch either for or against it.
The next operation was the conveyance by Mrs. Kromer to Friday. Now, a great endeavor was made in the course of this voluminous case to show that Friday and the Ruckers were independent individuals, but I am convinced that they were simply shadows of one substance. The Ruckers put up every dollar from first to last, Friday being their instrument and factotum.
Next came the partition. Friday presented his petition,, the exact language of which will be found in the so-called finding of facts quoted in the foregoing opinion. Now, let it be remembered that there had never been any sort of an adjudication that Mrs. Kromer was the owner of one-half, or any other interest, in this land; on the contrary, the decree of distribution, which was binding upon her and unappealed from, was squarely against any such proposition. And yet, the petition for partition did not mention the will, or the decree of distribution, but falsely alleged the ownership of the land and the interests of the children to be as stated in par. 6.
And to crown everything, the guardian of these infant children came in and assisted the fraud that was being perpetrated upon the court and his wards, by admitting in the answer every one of these false allegations, without mentioning the actual condition of the title, or the will. He did *645set out some pitiful allegations about payment of taxes, and denied that a sale was necessary ; and upon these as the sole issues the matter came on for hearing. And of what did this hearing consist ? The guardian was there, of course, with his attorney, but there was no hostility in the proceeding. Counsel for the petitioner was there with a witness or two, and findings and decree already drawn in the exact language of the petition. No question was asked of any witness about any matter other than whether the land could be divided or ought to be sold. The judge who made the decree so testifies, and the findings declare that the alleged facts are found “from the pleadings and evidence submitted.”
And thus, upon the admissions of the guardian, without trial, and without knowledge on the part of the court that there could be any issue over the title to the land, the decree was rendered, finding that 147 acres of wild land could not be divided into two fairly equal parts, but must be sold. Of course it must be sold ! That was the entire object of the scheme from A to Z. And of course Friday was the purchaser, on time; and he at once conveyed half of his purchase to the Ruckers, and pocketed $6,000 profit within sixty days by a sale to the Fverett Rand Company. It only remained to carry out this judicial proceeding by allowing the attorney for the guardian $500 out of the proceeds of the sale of these infants’ lands, and giving the Ruckers an execution against them for the $150 advanced to start the guardian’s application to sell. If these be fair dealings between fair men and infants, then Heaven help the children of the state when they fall into the hands of rogues !
The following legal propositions, I maintain, should have all been decided in favor of the appellants :
1. The full equitable title to the land having been acquired by Kromer before his marriage, it was his separate property.
2. Mrs. Kromer was bound by the decree of distribution, unless in some direct proceeding she asserted her interest.
3. The probate proceedings and appeal were void.
*6464. It was beyond the power of a guardian to admit away the title of his ward by answer in a partition proceeding. A guardian in such a case is not called upon to answer further than to put his opponent upon proof of every allegation. It has been held, always and everywhere, that while upon the trial of a case a guardian or his attorney may admit probative facts, neither of them can admit ultimate facts, and to do so is a fraud upon the ward. Formerly, and even now in some of the states, an infant might, after coming of age, set aside a decree for error even; and fraud, either in fact or law, is a just ground for such relief. Bank of U. S. v. Ritchie, 8 Pet. 128; Daingerfield v. Smith, 83 Va. 81 (1 S. E. 599); McIlvoy v. Alsop, 45 Miss. 365; Curtis v. Ballagh, 4 Edw. Ch. 635; Loomer v. Wheelwright, 3 Sandf. Ch. 135; James v. James, 4 Paige Ch. 115; Price v. Crone, 44 Miss. 571; Tucker v. Bean, 65 Me. 352; Fisher v. Fisher, 54 Ill. 231; Eaton v. Tillinghast, 4 R. I. 276; Chaffin v. Kimball's Heirs, 32 Ill. 36; Ingersoll v. Ingersoll, 42 Miss. 155; Claxton v. Claxton, 56 Mich. 557; Ralston v. Lahee, 8 Iowa, 17 (74 Am. Dec. 291).
In Joyce v. McAvoy, 31 Cal. 274 (89 Am. Dec. 172), Judge Sawyer learnedly reviewed the origin and principle of theparol demurrer, and showed it to have no application to the state of California, because there was no statute ; and he also found the doctrine not pertinent to the case because the attack was collateral and not by appeal or review.
But we have a modified statute of parol demurrer in Code Proc., § 1393, which in subd. 8 expressly provides for the vacation of a judgment against a minor for error within one year of his coming of age. Under this provision, the question of the title not having been in issue, or considered by the court, I maintain that the partition decree should have been set aside, and that matter determined. At bottom, the only point we have to consider here is: Was there error ? If there was, the statute regulates the matter by requiring a new hearing. As it is, this court has taken up the original case and decided it upon equitable grounds which were in no proper way before it.
*647The opinion of the court quotes the partition statute, which authorizes title to be put in issue in such proceedings ; but the trouble is that in this case it was not put in issue, the petition of Friday fraudulently concealing from the court the fact that there was any question of title, and the answer of the guardian assisting the fraud by its admissions. Authorities are cited to show that whatever might have been decided in a litigated case will be taken as actually decided ; but in partition, unless the defendant answers, title must be shown. Code 1881, § 558. In substance there was no answer in this case, for what was answered was merely illegal admission. Guardians may consent to partition without suit, as pointed out, under supervision of the court; but in such cases the court is the counsel of the guardian, and must be satisfied that the proposition is fair, the title certain^ and the division just. But here the proceeding ought to have been hostile, whereas it was, in fact, collusive. Moreover, the statute does not permit a guardian to consent to partition by sale.
I have not had to pass upon a case which so profoundly impressed me with a conviction of legal wrong as this. Not, perhaps, that a sufficient price was not obtained for this land; but that the door has been opened whereby .speculators, casting their covetous eyes upon the property of infants, may be enabled, by seemingly fair propositions, and by holding out tempting offers to guardians who would rather handle money than be bothered with land, to evade the solemn provisions made by a deceased father for his children. If the courts sit passively and let guardians confess away the estates of their wards in this way, no estate is safe, and a man who makes a will might as well save himself the trouble.
Above all, in this case there was absolutely no occasion for causing this land to be sold ; for I undertake to say that there is not a tract of land of that size in the state of Washington which cannot be fairly divided into two parts of equal value. The partition proceeding was a sham, initiated by the first approach of Rucker to the guardian, with his offer *648of $2,000, and $150 for expenses ; and if its consummation is ratified, it crowns with success an effort, at' a slightly advanced cost, it is true, to evade the law and the last will of Frskine D. Kromer.
From all appearances, Hewitt and the Fverett Fand Company seem to have been innocent purchasers, except that they could not take title save through Kromer’s will, and therefore with knowledge of the whole record pertaining to the property.
I advise a reversal and therefore dissent.