When this case was in Department the opinion" hereto attached was prepared by Mr. Commissioner Britt. After full consideration of the appeal in Bank we are satisfied with that opinion and with the conclusion there reached, and for the reasons therein given the judgment and order appealed from are affirmed.
Action to recover possession of a tract of land in Los Angeles county, and to set aside a sale thereof made in probate. Defendants, mere than a hundred in number, deraign through one Turner, who was the purchaser at said sale. Plaintiffs assert title as heirs of their father, Charles J. Dennis, who owned the land at the time of his death; against the validity of the sale they claim that the person who was appointed administratrix of the estate of said deceased sold the land without having qualified as administratrix and without right to act in that capacity; also that the petition and notice on which the court ordered the sale were insufficient to confer jurisdiction to make the order. There is no charge of actual fraud in the sale; it appears that the purchaser paid full value for the property. Defendants, in whose favor judgment passed below, rely on several lines of defense; our examination of the case leads us to doubt whether any of them has much merit, excepting only their plea of the statutes of limitation, and to this alone we shall direct our attention.
The special statute of limitations contained in the chapter of the Code of Civil Procedure relating to sales of property of decedents is as follows:
“Sec, 1573. Ko action for the recovery of any estate sold by an executor or administrator, under the provisions of this chapter, can be maintained by any heir or other person claiming under the decedent, unless it be commenced within three years next after the settlement of the final account of the executor or administrator. An action to set aside the sale may be instituted and maintained at any time within three years from the discovery of the fraud, or other grounds upon which the action is based.”
“Sec. 1574. The preceding section shall not apply to minors or others under any legal disability to sue at the time the right of action first accrues; but all such persons may commence an action at any time within three years after the removal of the disability.”
It is contended that, according to the allegations of the complaint, the land was never sold by an executor or administrator, and hence that said section 1573 can have no application. The question is in effect whether the heirs can be permitted to say in this collateral proceeding that there was no administration of their father’s estate at all. It is clear that the court had jurisdiction of the estate of the deceased, and to appoint the administratrix. Therefore, if the letters issued had been duly attested, it is unquestionable that, as against any collateral attack, they would have been conclusive evidence of her due qualification, and of her authority to act as administratrix. (Westcott v. Cady, 5 Johns. Ch. 342, 343; 9 Am. Dec. 306; Moreland v. Lawrence, 23 Minn. 84; Minnesota etc. Co. v. Beebe, 40 Minn. 7, 11; Duson v. Dupre, 32 La. Ann. 896; Mutual etc. Ins. Co. v. Tis
The purpose of the seal is to authenticate the document, show that it actually emanated from the court; here the letters recited that the seal was affixed, and Mrs. Dennis acted as administratrix, claiming to hold valid letters; the court recognized her as administratrix and repeatedly made orders reciting that she was such; the authenticity of the letters having been thus postulated and presumed in the quarters where duty and interest combined to require the truth of the matter to be known, it would seem that the presumption should be deemed conclusive against the present attack; and, in our opinion, the absence from the letters of the impress of the seal does not impair their effect, in this action, as evidence of her authority as administratrix. In Whyler v. Van Tiger (Cal., Aug. 31, 1887), 14 Pac. Rep. 846, this court upheld, against the suit of a minor, a lease of lands made by one who had been appointed his guardian and had given bond as such, but who had taken no oath and had not received letters of guardianship. That case well illustrates the tendency of the law to discountenance the collateral impeachment of the authority of such officers, but it has not the controlling importance supposed by respondents, because of differences in the statutes concerning the qualification, etc., of guardians and administrators. (See, further, Ganahl v. Soher, 68 Cal. 95; Gallagher v. Holland, 20 Nev. 167; Baldwin v. Standish, 7 Cush. 207; People v. Dunning, 1 Wend. 16; Ambler v. Leach, 15 W. Va. 677; Van Fleet on Collateral Attack, sec. 353.) We have given careful attention to the cases urged by plaintiffs upon the attention of the court—Pryor v. Downey, supra; Staples v. Connor, 79 Cal. 14—in which it was held that a sale of lands made in probate by one who, although acting as administrator, had not qualified by taking the oath and filing a bond, was void and might be successfully impeached by the heirs in an action like the present. But in those cases, as well as in Estate of Hamil
It is further claimed that the case is taken from the operation of the statute by the averment that the grounds of the action were discovered within one year next before the commencement of the suit. Aside from other considerations which may bear on this point, the statement of the complaint is insufficient for the purpose claimed because unaccompanied by any explanation of the failure to acquire knowledge earlier; so as regards the adult plaintiffs at least. The matters relied on to impeach the sale were patent of record, and there was adverse possession of the land; mere ignorance of the facts, therefore, without some valid excuse for ignorance, was of no consequence. (Hecht v. Slaney, 72 Cal. 363; Moore v. Boyd, 74 Cal. 167; Code, 1872, sec. 1573, commissioners’ note.) The minor plaintiff is in no better position for reasons presently to appear.
Lastly, it is insisted that because there has been no settlement of the final account of the administratrix the statute has never begun to run. Formerly said section 1573, which was drawn from section 190 of the probate act of 1851, required an action to recover estate sold by an executor or administrator to be brought within three years next after the sale; and following it then as now uras the provision of section 1574—section 191 of the prohate act—that the preceding section should not apply to minors or others under legal disability, who might sue within three years after removal of the disability. The result of the cases involving or illustrating the effect of these sections, in their original form, is that if the administrator failed to sue to recover the land or set aside the sale within three years next following the sale—the administration so long continuing—then the heirs as well as himself were barred, even though the heirs were minors; this on the ground that under our system the administrator represents the heirs; he the trustee; they the cestuis. (McLeran v. Benton, 73 Cal. 329, 342; 2 Am. St. Rep. 814; Staples v. Connor, supra; Pachett v. Pacific etc. Ry. Co., 100 Cal. 505; Meeks v. Olpherts, 100 U. S. 564; Meeks v. Vassault, 3 Saw. 206; Cunningham v. Ashley, 45 Cal. 485.) But in 1880 section 1573
The principle above stated is illustrated in the opinion of this court in Meherin v. San Francisco Produce Exchange, 117 Cal. 217, 218. "While the facts there were different from those here, the rule there declared seems to be applicable to the case at bar. That was an action by plaintiffs to have it adjudged that they were members in good standing of the defendant—the defendant having suspended them about eight years before the commencement of the action. The lower court held that the action was barred, and the judgment was affirmed. This court, in discussing the question whether the statute commenced to run before a demand had been made by plaintiffs for reinstatement, said as follows: “In such a case, a party cannot extend the statute of limitations indefinitely by failing to make a demand. (Opinion by Beatty, C. J., in Bills v. Silver King Min. Co., 106 Cal. 21; Prescott v. Gonser, 34 Iowa, 179; Baker v. Johnson Co., 33 Iowa, 151; Codman v. Rodgers, 10 Pick. 119.) In the case last cited the court say: ‘A party must not be permitted to sleep over his rights to the prejudice of the party to whom he makes the claim, who, by the delay, may be deprived of the evidence and means of effectually defending himself. A demand must be made within a reasonable time; otherwise the claim is considered stale, and no relief will be granted in a court of equity. "What is to be considered a reasonable time for this purpose does not appear to be settled by a precise rule. It must depend on circumstances. If no cause for delay be shown, it would seem
Since, therefore, the administratrix could not maintain the action because of lapse of time, it follows, in accordance with the authorities already cited, that the plaintiffs cannot maintain it, and the demurrer was properly sustained to the complaint of Frank H. Dennis and Kitty H. Whittemore. A like conclusion applies to the case of Willard W. Dennis; for although as to him the demurrer was overruled and the case went to trial, yet the plea of the statute was again interposed against him by answer and was sustained by the findings of the court; he is included in the effect of the bar of the statute against the administratrix, and the findings are sustained. If it be objected that he is placed thus in worse position than if the administratrix had in due time obtained the settlement of her final account, the answer is, that this is the logical outcome of the system which clothes the administrator with the right of action in such cases and makes him the representative and trustee of the heirs; the laches of the trustee, while he holds office as such, must be imputed to the beneficiary, and the remedy of the heir is against the administrator. (Wheeler v. Bolton, 54 Cal. 303; McLeran v. Benton, 73 Cal. 343; 3 Am. St. Rep. 814.) The judgment and order denying a new trial should be affirmed.
Temple, J., Harrison, J., and Henshaw, J., dissented.