WATERMAN et als. v. LAWRENCE et als., 19 Cal. 210

Baldwin, J. delivered the opinion of the Court Field, C. J. and Cope, J. concurring. In 1855, Lawrence filed a complaint in the Superior Court of the city of San Francisco for a partition of certain real estate in that city. Lawrence claimed that by certain mesne conveyances he held an undivided interest in fifty vara lot No. 75, which interest was held in common with certain heirs of one John Duncomb, some of whom were infants. To this complaint the infant heirs filed their answer by John Evans and Margaret, his wife, the latter the widow of John Duncomb, and the mother of the defendants.

Evans and wife had been appointed by the Court their guardians ad litem. This answer purports to be filed “by John Evans and Margaret Evans as guardians ad litem,” etc. The answer denies that the plaintiff, Lawrence, had any common interest with them in the land, but avers that one Waterman holds a separate interest in a particular portion of the fifty vara lot described in the proceedings; that his title came through certain proceedings had in 1849, before one Leavenworth, Alcalde, exercising probate jurisdiction in San Francisco; and defendants aver ignorance of any title of Lawrence.

A decree was rendered by the Judge of the Superior Court, reciting that Lawrence was shown to be the owner “ of the one-fourth part of the fifty vara lot, No. 75 ”—describing the portion particularly as in the answer; the decree also recites the other facts stated in the answer, as to the order of sale and proceedings under it had before Leavenworth.

The decree concludes as follows: “And therefore it is considered that said Margaret Evans, John Evans, her husband, and Sarah Mary Duncomb, Mary Ann Duncomb and Margaret Duncomb, defendants to this suit, and all persons claiming under them or either of them, the premises described above, be forever barred from all claim to any estate of inheritance or freehold in said premises.

And it is further ordered that all other proceedings in this behalf be and the same are hereby discontinued.” This present proceeding is a bill filed by these infants (who are now married) to set aside this decree of the Superior Court, upon the ground of errors of law appearing upon the face of it. 1. It will be perceived that, though the complaint of Lawrence makes a case of partition, the answer denies this claim, but insists that if the plaintiff has any claim at all, it is a separate and independent claim to a particular lot mentioned, with which the heirs have no connection and to which they have no right.

The guardians were appointed to defend the infants against the claim as made in the complaint; they had no authority to give, and gave no assent to a decree, not for partition or division of a common estate, but for a foreclosure of all claim of the infants and the quieting against them of the plaintiff’s title to the particular piece of land mentioned in the decree. The Court might as well have entered a decree affecting their title or declaring void their claim to any other property.

The infants were not before the Court for any such purpose, and the appointment of the guardian being a special power exercised by the Court, and giving only special and limited authority to the guardians, it would seem that their acts, so far transcending this authority, would be void. The guardians did not, and had no power to, admit away the rights of the infants, nor the Court to give effect to any such admission, as to a matter and for a purpose not within the scope of the appointment or the purview of the complaint. Its action in this respect would seem to be coram non judice and void.

It is contended by the appellant that the infants have no right to appear and review this proceeding, but that the decree is conclusive of their rights.

It is enough to say that this proceeding for partition is a special proceeding, and that the statute prescribes its course and effect; and though, after jurisdiction has attached, errors in the course of the cause cannot' be collaterally shown to impeach a judgment, yet so far, at least, as the rights of infants are involved, the Court has no jurisdiction except over the matter of partition, and has no power to render a decree divesting an infant’s estate!, not for the purpose of partition, but upon an adverse claim in the plaintiffs—in a suit brought against the infant merely for partition; for in this proceeding the Court appoints a guardian to defend for the infant solely 'against the claim set up for a partition of a common estate.

A decree might as well be made in such a suit for a sum of money on the confession of the guardian of such indebtedness. The only authority of the guardian to appear is by virtue of the appointment, and the appointment limits the effect of the appearance to the subject matter of the suit in which the appearance is made.

It is unnecessary to decide whether, under the statutes of this State, the infant, in an ordinary suit for partition in which the Court has acquired jurisdiction of the subject and parties, has a right to appear and show cause, either before or after his arrival at age, against the decree, for we have no doubt that a bill like this would lie at the instance of an infant to set aside a decree, where the Court had no jurisdiction, and where the decree would be a cloud on or embarrassment to the title. The proceedings before Leavenworth, Alcalde, are not set out.

It is urged by the appellant that they are sufficient to vest title in the party claiming through them. The case of Kegans v. Allcorn (9 Texas, 34) is a very strong one, to show that proceedings of the general character of those represented to have been taken before this officer will be upheld whenever it is possible to uphold them in consistency with law. The concluding observations of the learned Justice rendering the opinion in that case are marked by clearness and good sense.

It would not be proper to pass upon this point definitively at this time, as the facts are not fully before us, and moreover, the full benefit of any defense arising from these proceedings before the Alcalde can be had by the appellant in another form. Judgment affirmed.