The tion 1576, Code Civil Proc.) is addressed sole- | property is described as the "entire stock, ly to executors and administrators, for the furniture, etc., of the firm of I. & P. N. Hanbenefit and protection of the heirs and oth- na." It is nowhere found that this properers interested in the estate, which protec-ty, belonging “to the firm of I. & P. N. tion may be waived by the persons for Hanna," was the property of I. N. Hanna, whose benefit it was provided; it being or that I. N. Hanna was "I. & P. N. Hanwell settled that a purchase of the property na," nor can this court assume them to bẹ of an estate by the executor or adminis- the same. It would be going very far, and trator per interpositam personam, as in a bow-shot beyond the decided cases, to this case, is not void, but only voidable, at hold that a purchase by the executrix of the instance of the parties interested. I. N. Hanna, at public auction, of the propBoyd v. Blankman, 29 Cal. 33; Ives v. Ash-erty of the firm of which I. N. Hanna was ley, 97 Mass. 198; Dunlap v. Mitchell, 10 a member, was utterly void. I know of Ohio, 117; Williams v. Rhodes, 81 Ill. 574. no case which holds it. At most, it was If all parties interested should deem it ad- only voidable, at the election of the heirs visable, and agree that the executor should or devisees of I. N. Hanna. The rule appurchase the property of the estate at fair plicable to executors is that applicable to and fixed prices, would a purchase in ac- all sorts of trustees,-to an executor as cordance with such agreement, and entire- trustee for devisees and heirs,-and the rule ly free from actual fraud be even voidable? is thus stated in Campbell v. Walker, 5 Ves. Would not such an agreement be a good 678: "There is no rule that a trustee to sell defense to an action by a party to it to set cannot be the purchaser, but, however fair aside the sale on the sole ground of con- the transaction, it must be subject to an structive fraud? In view of the construc- option in the cestui que trust, if he comes tion given to section 1576 of the Code of in a reasonable time to have a resale, unCivil Procedure by this court, it would less the trustee, to prevent that, purchases seem that it does not prohibit a purchase under an application to the court." The of the property of an estate by the execu- questions here decided were directly adjutor or administrator which is satisfactory dicated in the case cited. The above decisto all parties interested, and is not object-ion was by the master of the rolls, Sir ed to by any of them; it being well settled RICHARD PEPPER ARDEN, afterward lord that persons not beneficially interested in chancellor, as Lord ALVANLEY. This rule the estate have no right to object, and that was in substance approved by Lord Chanthe parties interested may waive their right cellor ELDON, when this case came before to object, and may ratify the sale either him. Lord ELDON's decision is reported in expressly or by acquiescence. And it fol-13 Vesey, where the case is entitled "Sandlows that what they may ratify they might erson v. Walker." See 13 Ves. 601. have authorized in advance of the sale, rule is fully stated in 2 Pom. Eq. Jur. §§ 958, since a ratification is but the equivalent 1019, 1077, 1078. The decision may be conof a previous authority. Taking this view strued as finding that the executrix purof the case, the record fails to show that chased at her own sale of the property of Mary L. Hanna, in purchasing the proper the estate of her testator, and we shall so ty of the estate of Peter Naylor Hanna, treat it. That such a purchase is only did what was prohibited by law, since it voidable is expressly ruled in Boyd v. fails to show that any person interested in Blankman, 29 Cal. 34-36 et seq., where the that estate ever objected to her purchase, matter is fully discussed. This decision and also fails to show who were interest- has never been overruled, and is approved ed in the estate. For aught that appears, in San Diego v. Railroad Co., 44 Cal. 114. Mary L. Hanna may have been the only In Boyd v. Blankman, section 193 of the heir and the only creditor. If, under any former probate act was construed. That circumstances which may have existed, her section is the same as section 1576, Code purchase was lawful, and not immoral, it Civil Proc., except that in the latter the should be presumed to have been so until words, "nor must he be interested in any the existence of such circumstances are neg- sale," have been added. The whole ques-. atived; and the plaintiffs were entitled to tion, including the effect of this section, act upon this presumption at the time they was discussed ably and elaborately by the advanced money and rendered services in court, speaking by RHODES, J., and it was aid of her purchase, unless they had notice held that the section, as it then stood, did of facts not disclosed by the record in this not render the purchase by the administracase. The cases of Hotel Co. v. Wade, 97 U. tor void, but only voidable. The object S. 13, and Schermerhorn v. Talman, 14 N. of enacting this section is thus spoken of in Y. 123, shed much light upon the questions the opinion: "An examination of the proinvolved in this appeal, and furnish addi- bate act will disclose the intent of section tional reasons for our conclusions in this 193, and it is apparent that the object was case, which we have deemed it unnecessary not to declare who might or who might not to assign. We advise that the judgment become a purchaser of the property of the of the court below be affirmed." estate; but it was to prevent the property from being sold at a price less than its true value, which might be the case if the administrator, either directly or indi rectly, prevented competition among the bidders by entering into the market, either personally or by his agents, or if, with a view of purchasing, he was tempted to undervalue the property in his proceed. ings respecting the sale. The protection to the estate designed by that section I add the following: The property which was to be sold and bought, and as to which the plaintiffs contracted herein, consisted, as described in the letter addressed to the plaintiffs, and signed "Mary L. Hanna" (which thecourt below found was the only contract entered into between the parties; see finding 8,) of "the stock, fixtures, etc., of the firm of I. & P. N. Hanna." In another letter, addressed by same to same, this can be as fully secured by permitting the ed to set it aside; and in the case before us parties interested in the estate to set the the devisees under the will may set the sale sale aside and have the administrator aside, but a stranger, like Bihler, cannot. declared a trustee as it would be to What has Bihler to do with the sale? He construe the section so as to allow strang- had no interest in the property sold. What ers to impeach the sale, with the conse- difference did it make to him what the quent risk to the bona fide purchaser with- property sold for, or who bought it? It out notice, from the administrator's agent, was all the same to him. We cannot see of losing the premises he purchased, rely- how he can come in to vindicate a pretending on the apparent regularity of the pro-ed outrage on the majesty of the law, when bate proceedings, and the confirmation of the sale is lawful as to all persons, the the sale." Now, it certainly cannot be held heirs or devisees not objecting. It would that the words added in section 1576, Code be novel and unprecedented law that a Civil Proc., alter the effect of this statute. stranger, like Bihler, could get rid of his obThey are the same in legal effect. The old ligation in consequence of a sale perfectly section was found in the probate act refer- legal to him, and concerning which he ring to sales and conveyances of the prop- would not be listened to in any court of juserty of decedents, and so is the section of the tice, on an application by him to set it aside. Code. The title of chapter 7, in which sec- Section 1667, Civil Code, has no application tion 1576 is found, is "of sales and convey- here. When it does apply the contract is ances of property of decedents," and the wholly void, as to the whole world. When collocation of the sections in each Code of the contract is unlawful the contracting laws shows that it was inserted for the parties have no standing in a court of jusbenefit of heirs and devisees, and perhaps tice. As soon as that appears the litigants of creditors, who can alone be injured by are dismissed from the forum. Here the subsuch conduct of the administrator or exec-ject-matter of Bihler's complaint is only utor and who alone have a right to set it remotely and incidentally connected with aside by appeal to a court of equity, or the purchase by Mrs. Hanna. His contract perhaps to the court of probate, whose is suretyship for Mrs. Hanna, for money equitable powers would be sufficient to borrowed by her of the plaintiffs. To enforce deal with such a case. The fact that a Bihler's contention we must hold that becourt of equity has to be appealed to to set cause Mrs. Hanna purchased property at aside the sale shows that the sale is voida- her own sale, as executrix, without any ble only, for there is no reason to call in aid objection by the heirs or devisees, and borthe power of equity to set aside a sale, if rowed money of the plaintiffs to pay it to the sale were utterly void. If utterly void, the estate, for the repayment of which Bihthe party aggrieved could obtain relief in ler became surety, Bihler's contract of surean action at law. The words" void" and tyship never had any validity. One other “voidable" are very loosely used in text-matter should be recollected. The heirs books of approved authors, and in the judgment of courts. Discrimination must always be made in applying the rules of law stated by them on this matter. See comments in opinion of RHODES, J., in Boyd v. Blankman, 29 Cal. 37, as to the use of those words. The remarks just referred to will strike every intelligent reader as eminently true. On the question whether a sale is void or voidable, there is one test which never fails. If the title can be passed to a bona fide purchaser from the purchasing trustee, then the sale cannot be void; for, if void, no title ever passed, and the title to the property bought by Mrs. Hanna, through Haynes, would and could not pass to any purchaser from her. Nor could a purchaser from her convey title to any one. The sale being utterly void, no title to the property would pass, and Mrs. Hanna could, as executrix of P. N. Hanna, recover it from the parties to whom she sold it. or devisees cannot have the sale to Mrs. Hanna set aside without paying back to her the money she has paid for it. It is equity that it should be repaid. The heirs or devisees, asking equity, must do equity. The above is so well settled that it needs no citation of authority to support it. But see decree of court in Campbell v. Walker, 5 Ves. supra; Fox v. Mackreth, 1 Lead. Cas. Eq. 234, 257, 260. Hence, inasmuch as she lost nearly $10,000 by the transaction, she would doubtless be perfectly willing to have the sale set aside on the usual equitable terms. The parties aggrieved cannot set aside the sale without paying back the money; but, if the opinion of the majority is correct, Bihler can. A strange legal conclusion, certainly. Here a note was given, with Bihler as a party, and the plaintiff makes out his right to recover without having to prove anything of the transaction said to be illegal. "In Connecticut, in 1849," says Robinson, (5 Rob. Prac. 534,) “while The learned author, Austin, in his lec-admitting that, if a plaintiff requires any aid tures on Jurisprudence, (see volume 1, from an illegal transaction to establish his p. 322,) says: "The distinction in English demand, he cannot recover it,-or, in other law between void and voidable is the same words, if he is unable to support it without as that in the Roman law between null ipso relying upon an unlawful agreement bejure and ope exceptionis. The first con- tween himself and the defendant, he must ferred no right. The second conferred a fail,-yet considers that, though the parties right which might be rescinded or de- have been engaged in business either malum stroyed by some party interested in setting in se or merely prohibited by law, if the it aside." If the transaction must be im- cause of action be unconnected with the peached by exceptio or plea, it is voidable. illegal act, and is founded upon a distinct If no plea is required to avoid it, it is ut- and collateral consideration, it will not be terly void. It is null ipso jure. In the lat-affected by their former unlawful conduct. ter case, any stranger may impeach it. In Phalen v. Clark, 19 Conn. 432. Pertinent to the former, there must be a party interest- this view is the case in the same year of This is a singular case. Mrs. Hanna lost nearly $10,000 by the transaction, all of which the parties interested in the estate got. Still it is held that the defendant got rid of his obligation because the plain-clared, and this court has held that it cantiffs lent money to Mrs. Hanna to enable her to pay for the property bought by her. I think the judgment is without error, and should be affirmed. It should be noted that the prevailing opinion overrules the well-considered case of Boyd v. Blankman, supra, without alluding to it. In re WALKERLY'S ESTATE. (No. 12,950.) (Supreme Court of California. Dec. 2, 1889.) HOMESTEAD FOR WIDOW. Gregg v. Wyman, 4 Cush. 329, and the case son that the court could not set apart a before the supreme court of the United probate homestead greater in value than States in 1854, in which NELSON, J., deliver- $5,000. The provisions of the Code authoring the opinion of the court, said: "The izing a homestead to be set apart to the assignment was subsequent, collateral to, family of a decedent, where none has been and wholly independent of the illegal trans- selected before his death, contains no limitactions upon which the principal contractation as to the value of such homestead. was founded.' McBlair v. Gibbes, 17 How. Code Civil Proc. §§ 1465, 1468. There is such 235, 236." We understand the above to be a limitation where a homestead is declared the well-settled rule of law. The plaintiffs before his death. Id. §§ 1474, 1475. And in herein make their claim on their note, and that case, where it is sought to have the base no claim on the illegal transaction. same set apart to the family after his The defendant cannot set it up in defense; death, provision is made for a sale of the and the cases above cited from 5 Rob. Prac. property and payment of $5,000 to the famsustain this view. ily as or in lieu of the homestead, where it exceeds that amount in value, and cannot be divided. Id. § 1476. There is no provision for the payment of money in lieu of the property where no homestead has been denot be done in this class of cases. Estate of Noah, 73 Cal. 590, 15 Pac. Rep. 290. Therefore, if we hold in this case that a homestead exceeding $5,000 in value cannot be set apart, we must hold that the court is wholly without the power to set apart any homestead. Counsel for appellants rely upon the following cases as supporting their contention that the homestead set apart must be limited to not exceeding $5,000 in value: Estate of Burns, 54 Cal. 223; Kearney v. Kearney, 72 Cal. 591, 15 Pac. Rep. 769; Estate of Noah, 73 Cal. 590, 15 Pac. Rep. must be conceded that some of the lan290; Kingsley v. Kingsley, 39 Cal. 666. It guage used in these cases supports the position taken by the appellants, but a careful examination of them reveals the fact that they do not decide the question. In Estate of Burns, while the court remarked, in passing, that the "homestead mentioned and referred to in article 2 [which is referred to in section 1465 for the procedure to be resorted to in setting off the homestead] must not exceed $5,000," the only question decided was that the appeal was not properly taken, and the same was dismissed. It will be seen that the remark made here, that the homestead must be limited to $5,000 in value, was based upon the fact that section 1465 requires the homestead to be set apart, "in the manner provided in article 2 of this chapter, out of the real estate belonging to the decedent," and that article 2 limited the value of the homestead as stated. But the portion of article 2 of the chapter referred to, if it had the effect claimed for it, which we very much doubt, has been repealed, and can no longer be looked to as a part of the law on the subject. Estate of McCauley, 50 Cal. 545; Mawson v. Mawson, Id. 541. If, therefore, it be conceded that article 2 of the chapter had the effect to limit the value of WORKS, J. This is an appeal by the the homestead to be set apart, it must be trustees and legatees under the will of the clear that by the repeal thereof the limitatestator from an order setting apart to the tion thereby imposed was taken away, widow and child of the deceased a home- leaving section 1465 to stand alone, and stead. The whole of the property of the without any such limitation. In Kearney deceased was his separate property, and v. Kearney the homestead had been apwas of the value of $500,000 over and above praised at $4,200, and set apart in the adthe indebtedness. The homestead occupied ministration of the estate, and the action by the family at his death was of the value before the court was to set aside the order of $18,000, and was indivisible. The court on the ground of fraud and want of notice below set apart this homestead to the to the heirs, and on the further ground that widow and child for a limited time. It is the value of the homestead could not excontended that this was error, for the rea-ceed $1,000. The court, as in the other 1. Code Civil Proc. Cal. § 1476, provides that where a homestead has been selected during the marriage, and it is sought to have it set apart to the family after the death of the husband, there shall be a sale of the property, and payment of $5,000 to the family in lieu of the homestead, where it exceeds that amount in value, and cannot be divided; but, in determining whether it is worth more than $5,000, the value is to be fixed as of the time when it was selected. Sections 1465 and 1468, authorizing a homestead to be set apart to the fam ily of a decedent where none has been selected before his death, contain no limitations as to the value of such homestead; nor is there any authority for paying money in lieu of a homestead, where none has been declared. Held, that where no homestead has been declared it is in the discretion of the court to set apart one worth more, at the time of decedent's death, than $5,000. 2. Decedent, who had not made any declaration of homestead during his life, left an estate worth $500,000. The homestead occupied by the family at his death was worth $18,000, and was in divisible. Held, that it was not an abuse of the court's discretion to set it apart for the family, though liberal provisions had been made for them by the will. BEATTY, C. J., and THORNTON, J., dissenting. case, remarked that the "section referred | fixed as of the time the homestead was seto provides for a homestead of not exceed-lected. Section 1465 does not, in itself, reing $5,000." The point made, and the one quire any appraisement. So much of secthe court was discussing, was that only tion 1476 as requires an appraisement can$1,000 worth of land could be taken for a not be applied here, for the reason that it homestead. As the homestead in that case relates to a selected homestead and to an did not exceed $5,000, the case, so far as it entirely different time. Under the latter can be construed as holding that a home-section (1476) the homestead is treated as stead, in excess of that amount, cannot be having vested at the time of its selection. set apart, must be regarded as a mere dic- Under section 1465 it is created by the order tum. The statement in the opinion, to of the court. There is strong reason for that effect, should be given but little holding that under one of these sections a weight, for the reason that the question limitation was intended, and not under the now presented was not in the mind of the other. In one instance the selection is court, and could not have been considered. made by the party himself; in the other The case of Estate of Noah was one in the selection and setting apart of the homewhich it was held that the property, being stead is by the court. While it is fair to used exclusively as business property, and presume that the party will select a homeof the value of $25,000, could not be set stead of as great a value as he can, it is aside as a homestead. The decision rests equally fair to presume that the court will upon the sole ground that the property give the family such an one as is just and was not such as “could have been selected proper, considering the amount and condias a homestead during the continuance of tion of the estate. Therefore in one case a the marriage," and that for that reason it limitation was necessary; in the other, it could not be set apart as such after the was not. death of the husband. In the case of Kingsley v. Kingsley the right to the homestead was denied for the sole reason that the property was partnership property, and not within the terms of the statute. It is insisted by the appellants that the condition of this estate was such that, considering the liberal provision made for the wife and child of the deceased by his will, so valuable a homestead should not have been allowed. But this was a matter within the discretion of the court below, and, unless it appears that such discretion has been abused, we think this court should not interfere. The estate here is a large one, and we cannot say, from the evidence before us, that the court below abused its discretion in the matter. Order affirmed. We concur: PATERSON, J.; SHARPSTEIN, J.; MCFARLAND, J.; Fox, J. I dissent: BEATTY, C. J. I dissent: THORNTON, J. It must be seen, therefore, that these cases cannot aid us in arriving at a conclusion upon the question now presented. As we have seen, where the homestead has been selected during the marriage there is a limitation upon its value, but this court has held that the limitation referred to relates to the time the homestead was selected, and not to the time it is set apart by the probate court, and that, if the homestead did not exceed $5,000 in value at the time it was selected, it may, as between the widow and heirs, be set off to the family, although it has increased to a value greatly in excess of that sum. Burdick's Estate, 76 Cal. 639, 18 Pac. Rep. 805. If such a construction can be placed upon a statute expressly limiting the value of the homestead, we are unable to see upon what ground it can be held that a limitation should be placed upon it when the statute contains no such limitation. It seems to us that to so construe the section under consideration would be nothing less than judicial legislation. We must consider the sections relating to probate homesteads, where none this case are the same as in Re Walkerly's Estate, WORKS, J. The questions of law presented in have been previously selected, without ref-ante, 888, and on the authority of that case the or erence to the provisions relating to volun- der appealed from is affirmed. tary homesteads, if we hope to avoid confusion. Their provisions are entirely unlike, and are not in any way dependent upon each other. The appraisement provided for in section 1476 applies to a selected homestead, and the value is to be In re WALKERLY'S ESTATE. (No. 13,154.) (Supreme Court of California. Dec. 2, 1889.) In bank. Appeal from superior court, Alameda county; N. HAMILTON, Judge. L. Quint, for appellants. Hall & Rogers, for respondents. We concur: SHARPSTEIN, J.; MCFARLAND, J.; Fox, J.; PATERSON, J. I dissent: BEATTY, C. J. I dissent: THORNTON, J. RAISCH V. BOARD OF EDUCATION OF THE ever since refused, to draw the drafts. It CITY AND COUNTY OF SAN FRANCISCO. (No. 11,955.) (Supreme Court of California. Dec. 2, 1889.) MANDAMUS-TO COUNTY BOARDS. 1. St. Cal. 1871-72, p. 846, § 7, provides that payments from the school fund of San Francisco shall be made by the city and county treasurer only on drafts drawn on him by the board of edu cation. Held, that a writ of mandate would issue in favor of one who had fully performed all the conditions of a contract he had with the board, but for the payment for which it refused to draw any drafts, as the only ordinary action he could maintain would be against the members of the board for neglect of official duty in not drawing the draft, which would not be as convenient, beneficial, and effective as the writ. 2. Under Code Civil Proc. Cal. § 1090, providing that if, in an application for a writ of mandate, a question of fact essential to the determination of the motion be raised, and affecting the substantial rights of the parties, the court may order the question to be tried before a jury, the question whether the board had a semblance of cause for rejecting plaintiff's claim is properly left to the determination of a jury, though St. Cal. 1871-72, p. 846, § 1, subd. 12, gives the board power to reject any demand against it "for good cause, of which said board shall be sole judge. is further stated that respondent has no plain, speedy, and adequate remedy in the ordinary course of law. Respondent commenced this proceeding to compel appellant to draw the drafts asked for. Appellant interposed a general demurrer to the complaint, which was overruled, and then answered. After trial the court found that all the allegations of the complaint were true, and all the allegations of the answer were untrue, and by its judgment granted the relief prayed for. In support of the appeal it is claimed that respondent had a plain, speedy, and adequate remedy by an ordinary action at law against appellant, and hence was not entitled to the remedy of mandamus. It is said: "Petitioner should first sue the board, get a judgment, (if possible,) and then have writ issued." It is admitted that appellant is a corporation created for school purposes, and that its powers and duties are defined by an act of the legisla ture of this state approved April 1, 1872. St. 1871-72, p. 846. Section 2 of that act, subd. 1, makes it the duty of the board of education of the city and county of San PATERSON, FOX, and THORNTON, JJ., dissenting. Francisco to furnish all necessary supplies Commissioners' decision. In bank. Ap- for the several schools under its care, and dipeal from superior court, city and county rects how they should be obtained. Section of San Francisco; M. A. EDMONDS, Judge. 7 provides for the disposition of all moneys Application for a writ of mandate by received or collected for school purposes as Frederick Raisch against the board of eď- follows: “All moneys received or collected ucation of the city and county of San Fran- on account of public education in the city cisco. From a judgment awarding the and county of San Francisco shall be dewrit, defendant appeals. Code Civil Proc. posited in the city treasury, and be known Cal. § 1090, provides: "If an answer be made as the School Fund.' Payments from [to the application for the writ] which said fund shall only be made by the treasraises a question as to a matter of fact es-urer of the said city and county upon drafts sential to the determination of the motion, drawn on him by the board of education, and affecting the substantial rights of the signed by the president and the superintendparties, the court may, in its dis-ent of common schools, and countersigned cretion, order the question to be tried be- by the auditor of said city and county; and fore a jury." all drafts shall be made payable to the person or persons entitled to receive the same." And section 1, subd. 12, declares that the board shall have power "to examine and allow, in whole or in part, every demand payable out of the school fund, or to reject any such demand for good cause, of which the said board shall be the sole judge.” ** * John L. Love and George Flournoy, Jr., City and County Atty., for appellant. Otto Tum Suden, for respondent. BELCHER, C. C. This is an appeal from a judgment awarding the respondent a writ of mandate, and the case comes here on the judgment roll. The facts stated in the The argument is that the board was complaint are, in substance, as follows: clothed with discretionary power to allow The respondent and appellant, under and or reject the respondent's claim, and that by virtue and authority of a statute of this its discretion cannot be controlled by the state, entered into a written contract, by courts in a proceeding like this. There can which respondent agreed to furnish appel- be no doubt that the board was authorlant, during the fiscal year 1884-85, rubberized to purchase, and did purchase and hose of a certain description and quality, receive, the hose, and that respondent and appellant agreed to pay, or cause to fully performed all the conditions of the be paid, to respondent therefor a sum of contract on his part. This is estabmoney equal to 35 cents for each and every lished by the findings, and they are not lineal foot of hose so furnished, delivered, assailed. It is also clear that the respondand accepted. In pursuance of this con-ent's claim must be paid, if paid at all, tract respondent furnished to appellant, during the year named, 1,000 feet of hose at one time, and 500 feet at another time, which was all of the kind and quality named in the contract, and was received and accepted by appellant. In due time respondent presented his claim, and demanded that appellant draw drafts in his favor upon the school fund of the city and county of San Francisco for the amounts due him for the hose according to the contract price, but appellant refused, and has out of the school fund, and that such payment can only be made by a draft or drafts drawn by the board, and signed and countersigned by the designated othcers. It is not pretended that respondent had any cause of action against the city and county. This being so, it is evident that, when the board purchased and received the hose, it became a matter of offi cial duty on its part to pay the agreed price. And when it refused to do so the respondent must necessarily have had some |