McGUIRE v. EHRLICH
McGuire v. Ehrlich
McGUIRE v. EHRLICH
McGUIRE v. EHRLICH
No. 2715
May 5, 1926.
245 P. 703.
I. S. Thompson, for Appellant:
Ryland G. Taylor, for Respondent:
OPINION
By the Court,
Sanders, J.:
The plaintiff below, respondent, as administratrix of the estate of I. M. Hensley, deceased, leased the real' property of said estate, consisting of 160 acres of land, together with a frame store building, dwelling, and improvements thereon, situate in Nye County, Nevada, to the defendant below, appellant, at a monthly rental of $25, payable in advance. The defendant entered into the possession of the premises. Subsequently the plaintiff, as administratrix of said estate, applied to the court for an order to sell the rented premises for the benefit of the estate. The order of sale was obtained, and the property was advertised for sale, and sold by the administratrix on the 17th day of November, 1923, to H. B. Lang for the price of $250. On the 4th day of January, 1924, the plaintiff, as administratrix, caused a demand in writing to be made upon the defendant for the payment of rent or for the surrender of the premises within three days after the service upon him of said demand. The defendant neglected and refused for the space of three days after said demand to pay the rent or surrender the premises. Thereafter, on, to wit, the 8th day of August, 1924, the plaintiff as administratrix brought this action in unlawful detainer for the restitution of the premises and demanded judgment for $275 as rent, and for such additional sum as might become due during the pendency of the action. Subsequent to the commencement of the action, to wit, on the 1st day of October, 1924, the court made an order in the matter of said estate confirming the sale of the property in November, 1923, to H. B. Lang.
The case was tried without a jury. The court, after a full hearing upon the pleadings and evidence, found in favor of the plaintiff, and rendered judgment against the defendant for the sum of $325, and adjudged and ordered that each side pay its own costs.
The defendant has appealed from said judgment, and also from an order denying the defendant's motion for new trial. The plaintiff has appealed from so much of said judgment as relates to costs.
We shall consider first the defendant's appeals.
Appellant contends that the court below erred in refusing to grant his motion to quash the proceedings on the ground that the proof showed that plaintiff as administratrix was not at the time of the commencement of her action the real party in interest, and was, therefore, not entitled to maintain this action. In support of this position it is insisted that through the administratrix's sale of the property by court order to H. B. Lang he became, and was, the real party in interest, and the only person entitled to the possession of the property and to the rents and profits thereof. This contention involves the construction of certain sections .of the statute relative to the settlement of estates of deceased persons. The sole test to the administratrix's right of action is right of the estate to the possession of. the property. The executor or administrator has a right to the possession of all the real, as well as personal, estate of the deceased, and may receive the rents and profits of the real estate until the estate shall be settled, or until delivered over by order of the district court to the heirs or devisees. Section 5950, Rev. Laws. When either of these events happen, the possessory right of the administrator under the statute terminates. Meeks v. Hahn, 20 Cal. 620; Touchard v. Keyes, 21 Cal. 208. But it is contended that section 5950, Rev. Laws, has no application, where the property is sold for the benefit of the estate by court order upon the petition of the ádministratrix. Under our statute (section 5980, Rev. Laws) no sale of any property of an estate of a deceased person shall be valid, unless made under an order of the district court. And section 5999, Rev. Laws, provides that, if upon the hearing for confirmation it shall appear to the court that the sale was legally made and fairly conducted, the court shall confirm the sale and direct proper conveyances to be made and executed, "and such sale from that time shall be confirmed and valid." The meaning of these provisions, it is said, clearly is that the title vests in the vendee by the order of confirmation, and the deed is nothing more than the act of an officer of the court pursuant to the decree. 11 Cal. Jur. sec. 588, p. 948. Passage of title takes place upon the confirmation of the sale, and there is nothing in the statute authorizing the construction that before the confirmation of the sale the executor or administrator is not the proper person or real party in interest to maintain an action for the possession of the leased property of the estate and recover the accrued rents.
It is argued on behalf of appellant that no legal notice was served upon him before the commencement of this action to surrender the premises or pay rent. The notice or demand served upon the defendant was signed by the attorney for the administratrix. We are of opinion that such notice may be signed by an agent or attorney, and a notice signed by an attorney need not show whether he is an attorney at law or in fact. Arnold v. Krigbaum, 146 P. 423, 169 Cal. 143, Ann. Cas. 1916d, 370.
It is contended that the proof shows that the relation of landlord and tenant did not exist between the parties, for the reason that the property claimed by the defendant was not owned by the deceased at the time of his death, but, on the contrary, was the property of a third person from whom it had been purchased by the defendant during the lifetime of the deceased, and with his knowledge. The question of ownership was one of fact, and, there being a substantial conflict in the evidence bearing upon this question, we cannot under the rule disturb the court's finding to the effect that at the time of the decedent's death he was the owner of all the property described in the plaintiff's complaint.
We shall now' dispose of the respondent's appeal from the judgment with respect to costs.
The appellant, defendant below, moved to strike from the judgment roll those certain papers or files designated as "Memorandum of Costs," "Notice of Motion," and the order signed "Frank T. Dunn, District Judge." The papers or files so designated do not constitute a part of the j udgment roll, and, not having been incorporated in a bill of exceptions, we cannot consider them in connection with the plaintiff's appeal. We therefore sustain appellant's motion to strike.
The judgment is affirmed.