Bergin v. Haight, 99 Cal. 52 (Cal. 1893)

The Court.

Action to quiet the alleged title of plaintiff to five undivided twelfth parts of a lot of land situtate in the city of San Francisco. The judgment of the trial court was in favor of the plaintiff, and the defendants appeal from the judgment and from an order denying their motion for a new trial.

The cause was tried by the court and findings were expressly waived. It appears that Francisco Soto, who died intestate in this state in 1856, was seized of the lot in question at the time of his death; and that he left surviving him five sisters and a brother who were his only heirs-at-law.

In March, 1866, two of these sisters conveyed to plaintiff an undivided half of all their right, title, and interest in said lot, by deed of grant, bargain, and sale, which was duly recorded August 10,1870. Thereafter, on April 7, 1868, three others of said heirs conveyed to plaintiff an undivided half part of all their right, title, and interest in said lot by a like deed, which was also recorded on August 10, 1870. And it is admitted that, by virtue of these conveyances, plaintiff was the owner of an undivided five twelfths of said lot at the time of the commencement of this action, unless he had been divested of his title thereto by an alleged sale of the lot, by order of the probate court, to James Gordon, under whom the defendant Haight claims title to the entire lot.

It is alleged in the complaint, however, that the order of sale and the confirmation thereof to Gordon, under whom defendant claims, were fraudulently obtained by. collusion of the administrator with Gordan and the defendant Haight; that the administrator was merely the passive and willing instrument of defendant Haight, by which the latter, in fact, administered upon the estate, and, through Gordon, became the purchaser of the property at his own sale thereof.

The principal point made by appellant is that the evidence does not justify the finding of the fraud charged; but, after a careful consideration of the facts and circumstances of the case, we cannot say that they would not justify a finding that the defendant Haight procured the appointment of Sander, and employed the proceedings in probate for the purpose of securing the title in himself—that he, in fact, administered upon the estate and through Gordon became a purchaser at his own sale. It would serve no useful purpose to detail the facts and circumstances upon which we think an implied finding such as stated above may be supported. The court below saw and heard the witnesses, and there being in our judgment a substantial conflict upon material testimony tending to establish or rebut the allegation of fraud, its decision is conclusive upon us.

Upon the findings necessarily implied in the decision of the court below, we entertain no doubt as to the right of the plaintiff to the relief herein sought. A mere volunteer who institutes proceedings in probate upon an estate in which he has no interest and for the ostensible purpose of paying the debts of such estate, but, in fact, to procure a sale of a part of the estate to himself, and directs, controls, and manages the proceedings in probate successfully to that end, has no standing in a court of equity. Such a sale is voidable and will be set aside at the instance of any one injured thereby.

It is claimed by appellant that this is a collateral attack upon the orders’of the probate court, and that since the record of the proceedings show that the court had acquired jurisdiction, and that the proceedings were upon their face regular, the order confirming, the sale cannot be thus attacked.

It is true, the court did acquire jurisdiction to administer upon the estate, and to order aud confirm the sale of the prop

erty; but it does not follow therefrom that this is a collateral attack. The attack is a direct attack upon the sale, on the ground of fraud, and as such is authorized by law. (Van Fleet’s Collateral Attack, pp. 4, 5, 15, and authorities cited.)' It is not every species of fraud, however, which may be the" basis of an action to vacate an order or judgment. To be' actionable, as stated by our chief justice in Pieo v. Cohn, 91 Cal. 129; 25 Am. St. Bep. 159, it must be “a fraud extrinsic or collateral to the questions examined and determined in the action.....Among the instances given in the books are such as these; Keeping the unsuccessful party away from the court by a false promise of a compromise, or purposely keeping him in ignorance of the suit; or, where an attorney fraudulently pretends to represent a party, and connives at his defeat, or being regularly employed, corruptly sells out his client.” The fraud herein relied upon falls within the principle illustrated by the example stated above, and certainly within the principle underlying many other cases. (Jones v. Hanna, 81 Cal. 507; Johnson v. Waters, 111 U. S. 667; Griffith v. Godey, 113 U. S. 93; Mayberry v. McClurg, 51 Mo. 256; Hardy v. Broaddus, 35 Tex. 668; Warner v. Blakeman, 4 Keyes, 487; La Rue v. Friedman, 49 Cal. 278; Caldwell v. Caldwell, 45 Ohio St. 513.) The plaintiff had only constructive notice of the administration and proceedings to sell. Furthermore, there is nothing upon the face of the proceedings to indicate a fraudulent collusion between the administrator and his attorney. There was no opportunity to determine an issue of fraud in the probate court. The administrator was acting as trustee and agent for the owners of the property, whether such owners were heirs or assignees of heirs, and the defendant stood in the same confidential relation. (Ex parte James, 8 Ves. 343; O’Dell v. Rogers, 44 Wis. 136-178; West v. Waddill, 33 Ark. 586; Phillips v. Benson, 82 Ala. 500; Hawley v. Cramer, 4 Cowen, 718-733; Baker v. Humphrey, 101 U. S. 494.)

The judgment and order are affirmed,

Harrison, J., being disqualified, did not participate in the foregoing decision-

Rehearing denied.