Huse v. Den

McFarland, J. This is an appeal by defendants, Hollister et al., from an order denying a new trial. There is also another appeal by the same defendants (No. 12728) from the judgment rendered in the action. The transcripts in the two appeals are substantially the same; and as the points in the two are similar, they have been argued and submitted together. The subject-matter involved is the ownership and right of possession of two tracts of land, each being part of the Rancho dos Pueblos, in the county of Santa Barbara,—one containing 2,785 acres, and the other 112 acres. The main issue as to the ownership is between the heirs of Nicholas A. Den, deceased, and Hollister et al., who claim as purchasers from the executors of said Den, deceased,—these purchases having been made without any orders of the probate court. The judgment of the court below was in favor of the heirs and against the purchasers, who appeal. The case has been in this court before. It was first decided in the lower court in favor of the purchasers, but upon appeal the judgment was reversed in this court, and the cause remanded. After some amendments to the pleadings, it was tried again, with the result as above stated. [398] When the case was here before, the history and. facts of the case were so fully stated in the opinion of the court that we do not deem it necessary to restate them here. (See Hill v. Den, 54 Cal. 6.) And many of the questions involved were decided at that time, and have become the law of the case. We will therefore notice the new features which the present appeals present. 1. An important document in the case is a deed of trust, embracing one undivided half of the rancho, executed by said Nicholas A. Den and wife to himself and one R S. Den, on September 16, 1851. This deed was attacked on the first trial as invalid and inoperative, for various reasons then presented; but this court held that deed to create a perfectly valid and operative trust for the purposes which it declared (54 Cal. 19,20); and such must now be held to be the law on that point. On the first trial, however, while the appellants here denied the effect of this deed as claimed by the heirs, they admitted its due execution, but before the second trial they amended their pleadings so as to deny its execution. Therefore, the point as to its execution was not before this court on the former appeal. But at the second trial the court below found that it was delivered; and we think the finding is based on sufficient evidence. There is no dispute that the instrument was signed and acknowledged by Nicholas A. Den and his wife; but it is contended that there was no sufficient delivery, because there was no formal and physical handing of it over to the other trustee, R S. Den. But R S. Den was present when it was prepared, signed, and acknowledged, and consented to become one of the trustees therein and act as such. It remained afterward in the possession of Nicholas A. Den, who caused it to be recorded in the recorder’s office a month or two afterward, and was among his papers at the time of his death, and in his will he referred to it, and recognized it as an effectual vesting of the property mentioned in it in the grantees [399] in trust. The intent of the grantor is the main thing to be discovered. Here the grantor was himself nominally one of the grantees; the deed was intended to be a deed of settlement for the benefit of his children, and was in the nature of a covenant to stand seised for the benefit of the cestui que trust; it was formally acknowledged and recorded; the other grantee was present and accepted the trust, and the grantor recognized it in his subsequent will. These circumstances were sufficient to warrant the court in finding a complete execution of the instrument. 2. Nicholas Den died on March 3, 1862, leaving a widow and ten children. He also left a will, which was duly probated, in which José Maria Hill, Charles E. Huse, and Alfred Robinson were named as executors. Robinson afterward resigned as executor, and Hill and Huse undertook, without any order of the probate court, to sell and make conveyances of land of the estate to Hollister and others, — under which conveyances appellants claimed the legal title at the first trial. But this court, on the former appeal, construed the will, and held that it gave no power to the executors to sell the real property; that such sale could have been made only under an order of the probate court; and that the sales and conveyances attempted to be made were void. (54 Cal. 21, 22.) This ruling was not only clearly correct, but is the law of the case. It is urged, however, that although the sales by the executors were void, still the doctrine of estoppel in pais may be invoked by appellants. . But the facts and pleadings on that point are substantially as those on, the former appeal; and this court then held that “ there is no foundation here for the claim of an estoppel in pais. The rules which govern in such cases have been so often laid down here that they do not require repetition.” This ruling, adopted by the court below, meets our approbation, and is also conclusive on the point. (54 Cal. 23.) [400] 3. The point that the heirs were barred by the statute of limitations was also made on the former appeal, and decided adversely to appellants, — this court holding that “the statute of limitations has no application.” (54 Cal. 23.) 4. The appellants make the point, which does not appear clearly to have been made at the former trial and appeal, that, upon the doctrine of subrogation, they are entitled to be reimbursed the amounts paid by them at the void sales. On this point we agree with the findings and opinion of the learned judge of the court below. When one purchases land at a void judicial sale, in entire ignorance that it is void, and in good faith pays money thereon, which is applied to the satisfaction of a lien or encumbrance upon the land, it has been held, in some cases, that he should be put in the place of the creditor, to the extent, at least, that his money has satisfied the lien. But in the case at bar, the purchasers knew of the deed of trust and the will; knew of the want of power of the executors to sell without an order of the probate court; were warned not to purchase without the order and sanction of said court, and purchased in the face of t.his knowledge and caution. They wefe not, therefore, ignorant purchasers in good faith to whom the doctrine of subrogation would, under any circumstances, apply. Moreover, their payments were not made to the heirs who are parties here, but to the executors and trustees, who used the money indiscriminately with other moneys received from sales of personal property and other lands for various purposes. As said by the court below: “ Neither by allegation in the pleadings, nor in the evidence, has any successful attempt been made to segregate the various payments or applications of these heterogeneous funds.” For these reasons, we think the court was right in rejecting this claim of subrogation, and therefore it is not necessary to examine the question whether such a claim was not within the exclusive prov [401] ince of the probate court, and whether a court of equity, under our system, has jurisdiction to enforce payment of claims against an estate of a deceased person. 5. Appellants contend that they should have been allowed for the value of their improvements made on the land. Without entering into the discussion of the question whether any such allowance can be made to one who has not been a purchaser without knowledge and in good faith, we think it clear that, under our statute and former decisions in this state, such allowance can be made only as an offset for damages claimed for withholding possession. (Code Civ. Proc., sec. 741.) Such allowance was made in the case at bar. The court found that the value of the improvements placed on the land was in excess of the value of the rents and profits, and therefore allowed respondents no judgment for rents or damages. This was all that appellants were, under any view, entitled to demand. We have thus referred to all the main points in the case, and see no others necessary to be noticed in detail. We find no error committed by the court below. This case has been very elaborately and ably presented in the various briefs of counsel. A great many authorities have been cited and discussed. It would be impossible for us to review those authorities in an opinion without exceeding all reasonable bounds. We have therefore given only our conclusions. The order denying a new trial is affirmed. Sharpstein, J., and Thornton, J.2 concurred. Hearing in Bank denied.