Campbell v. Drais

Citations

• 125 Cal. 253
• 57 P. 994
• 1899 Cal. LEXIS 840

Syllabus

<p>Estates oe Deceased Persons—Sale oe Real Estate—Order to Show Cause—Service oe Notice.—A probate sale of real estate made without the order to show cause required by section 1537 of the Code of Civil Procedure, and without the service or publication of notice required by section 1539 of that Code, is invalid and void.</p> <p>Id.—Waiver oe Notice to Minor Heirs—Authority oe Appointed Attorney.—The attorney appointed by the court to represent minor heirs, has no authority to represent them in a proceeding to sell the real estate oí the decedent, until after the court has obtained jurisdiction of their persons by the service of notice upon them; and he has no authority to waive such notice.</p> <p>Id.—Appearance of Appointed Attorney—Proof of Service of Notice.—The provision of section 1718 of the Code of Civil Procedure, as it stood in 1874, that the appearance of the appointed attorney is sufficient proof of service of notice on the parties he represents, implies that there must be notice to the parties and service thereof in fact prior to such appearance; and when the contrary appears affirmatively, such attorney could not waive both notice and service.</p> <p>Id.—Avoidance of Probate Sale— Statute of Limitations— Recognition of Title of Heirs—Tenancy in Common.—The statute of limitations of three years prescribed by section 1573 ot the Code of Civil Procedure, within which the heirs of the decedent may avoid a sale made by an executor or administrator, does not run where it appears that the heirs had no cause of •action against the purchaser; and where the purchaser recognized the title of minor heirs, and held and continued to hold . for them during their minority and after their majority, as tenant in common with them, they have no cause of action against him and are not barred by that section of the code during such recognition of their title, and holding of the purchaser for them.</p> <p>Id.—Quieting Title of Heirs—Notice to Mortgagee of Pub-chaser—Deed Unde