JOEL HARLAN and LUCIEN B. HUFF, Administrators of George Harlan, Deceased v. LEWIS PECK et al. and JAMES VANTINE et al., Intervenors, 33 Cal. 515

By the Court, Sanderson, J.: The language of the one hundred and ninetieth

section of the Probate Act is as follows: “Ho action.for the recovery of any real estate sold by an executor or administrator under the provisions of this

Chapter shall be maintained by any heir or other person claiming under the deceased testator or intestate, unless it be commenced within three years next after the sale.” "Whether this language embraces sales which are made under orders of the Probate Courts which are void for the want of jurisdiction or only such sales as are merely voidable, is the question. There is nothing in the policy or language of the statute which excludes void sales from its operation.

The policy of the statute is to quiet titles to real estate sold hy order of the Probate Courts, and in view of that policy, merely, there can be no distinction between sales which may be termed void for the want of jurisdiction, and those which are voidable only. Bor is there anything in the language of the statute which creates such a distinction. The claim that such a distinction is created "by the phrase “ under the provisions of this

Chapter ” cannot be sustained. To so hold would be to nullify the statute, for if, as suggested, we read the phrase as meaning “ according to the provisions of this Chapter,” the limitation would be confined to “ sales made according to the provisions of this Chapter,” that is to say, to sales in all respects valid, as to which, for obvious reasons, there can be no occasion for a Statute of Limitations.

To the phrase in question there is added no qualification, and hence if it restricts the limitation at all it excludes all sales which are not “ according to the provisions of this Chapter,” which includes voidable as well as void sales. So the defendant in every case would be compelled to allege and prove a valid sale before he could invoke the protection of the statute; or, in other words, he must show that he stands in no need of protection in order to obtain protection. (Holmes v. Beal, 9 Cushing, 227; Scott v.

Hickox, 7 Ohio State R. 90.) We think the statute applies to all sales, void as well as voidable, made by Probate Courts, of real estate belonging to persons who have, died since the passage of the Probate Act. Under the foregoing view, it becomes unnecessary to consider the other questions involved in the case, or the case made by the intervenors. Judgment reversed and a new trial granted. BTeither Mr. Justice Si-iaeter nor Mr. Justice Bhodes expressed an opinion.