EDWARD QUIGLEY McCAUGHEY and George Joseph McCaughey, Minors, by Their Guardian, Susan McCaughey, et al., Plffs. in Err., v. ALEXANDER LYALL, H. J. Finger, Mae Morton, et al.

This writ of error is directed to a judgment of the supreme court of the state of California, sustaining the title of defendants in error to certain lands in that state, derived through a sheriff's sale of the same upon suit for foreclosure of a mortgage. The suit was instituted and prosecuted against the administratrix of the estate of the father of plaintiffs in error, they not having been made parties nor given notice of the pendency of the suit.

The facts, as stated in the opinion of the court, are as follows:

'George McCaughey died intestate on March 1, 1890. The plaintiffs are his children and heirs at law. During his lifetime, on June 6, 1889, the deceased executed a mortgage on certain land to one H. J. Finger to secure a promissory note for $500, which was due and unpaid at the death of the decedent. After his death Susan McCaughey was duly appointed and qualified as administratrix of his estate. The note and mortgage were duly presented to the administratrix and were allowed by her and approved by the probate judge. In January, 1894, Finger commenced an action against the administratrix to foreclose the mortgage, but did not make plaintiffs parties to such action. Such proceedings were had that a judgment of foreclosure was regularly rendered, under which the land was duly sold by the sheriff on April 10, 1895, to defendant Lyall, who in due time received a sheriff's deed therefor. Several years afterwards this present action was brought by said heirs to have it adjudicated that they are the owners of an undivided one half of the said land; that the claim of the defendants thereto be adjudged null and void; that plaintiffs recover the possession of the land, etc. A general demurrer to the complaint was interposed by the defendant Lyall and by other defendants. The demurrers were sustained; and plaintiffs declining to amend, judgment was rendered for defendants.' [152 Cal. 616, 93 Pac. 681.]

The judgment was affirmed by department 2 of the supreme court, and a petition for rehearing in bank was denied. Thereupon the chief justice of the court granted this writ of error.

The contention of plaintiffs in error is that the law cast upon them the title to the land upon the death of their intestate ancestor, and that such title could not be devested in a suit in which they were not parties.

To sustain the contention, plaintiffs in error make, as we shall see, one part of the law of the state paramount to another part, certain decisions of the courts of the state paramount to other decisions, putting out of view that necessarily the co-ordination of the laws of the state and the accommodation of the decisions of its courts is the function and province of the tribunals of the state, legislative and judicial, respectively.

For their rights of property plaintiffs adduce § 1384 of the Civil Code of the state, which provides that 'the property, both real and personal, of one who dies without disposing of it by will, passes to the heirs of the intestate, subject to the control of the probate court, and to the possession of any administrator appointed by that court, for the purposes of administration.' And decisions of the supreme court are cited, holding, it is said, 'that upon the death of the ancestor, the title to the real estate vests immediately in the heir.' From the Code and the decisions it is deduced that the descent being cast at the instant of the death of ancestor, the 'right of the heir is fixed by such positive law, and he becomes invested with the measure of title which that law has fixed, and cannot be devested of such title without due process of law.'

It is admitted that the heir takes subject to administration, but with that limitation only, it being contended further that 'he holds precisely the title held by the ancestor.' Section 1582 of the Code of Civil Procedure of the state is cited as defining the limitation. It provides that 'actions for the recovery of any property, real or personal, or for the possession thereof, or to quiet title thereto, or to determine any adverse claim thereon, and all actions founded upon contracts, may be maintained by and against executors and administrators in all cases in which the same might have been maintained by or against their respective testators or intestates.'

The supreme court of the state in a number of decisions has considered that section to mean that an heir is not a necessary party with the administrator. Cunningham v. Ashley, 45 Cal. 485; Bayly v. Muehe, 65 Cal. 345, 3 Pac. 467, 4 Pac. 486; Finger v. McCaughey, 119 Cal. 59, 51 Pac. 13, Dickey v. Gibson, 121 Cal. 276, 53 Pac. 704. This is conceded by plaintiffs in error, but they say that because § 1582 of the Code of Civil Procedure 'is made the basis of the rule established by the supreme court of the state,' they complain of it, and respectfully urge that it 'is repugnant to the 14th Amendment of the Constitution of the United States, § 1.' This is equivalent to saying that the legislative power of the state, being the source of the rights and the remedies, has so dealt with one as to make the other repugnant to the Constitution of the United States; or, if the complaint be of the decisions, that the supreme court of the state cannot construe the laws of the state and make of them a consistent system of jurisprudence, accommodating rights and remedies. Both contentions are so clearly untenable that further discussion is unnecessary.

Judgment affirmed.