action of the superior court of general jurisdiction derived from the constitution, and it does not become pro hac vice a court of inferior and limited jurisdiction.

ID.-MODE OF ACTION REGULATED BY CODE.-Although the superior court derives its authority from the constitution it is controlled as to the mode of its action by the code, and the legislature may regulate the mode in which the court shall exercise its jurisdiction, though it cannot circumscribe its power.

ID. PRESUMPTION AS TO PROBATE DECREES-COLLATERAL ATTACK.— Under the constitution of 1879, the same presumption attaches to decrees in probate proceedings upon collateral attack, as to judgments in cases at common law or in equity, and the sufficiency of the proceedings or petition will be tested by the same liberal rule which applies to the pleadings in an ordinary action upon such attack. ID. APPLICATION TO SELL REAL ESTATE OF DECEDENT-NATURE OF JURISDICTION-INDEPENDENT STEP IN ADMINISTRATION.-In undertaking and passing upon an application to sell real estate belonging to a decedent, the court is not acting as a special tribunal, but is in the exercise of its general jurisdiction over the subject matter derived from the constitution; but such application is an independent step or proceeding in the administration of the estate, and it is essential that the application be made substantially as provided by statute.

ID.-POWER OF LEGISLATURE-SALE OF PROPERTY.-The legislature has the power to direct how either real or personal property of a decedent shall be sold.

ID.-PETITION AND NOTICE-JURISDICTION-ERRORS-VALIDITY OF DECREE. Under the statute, the filing of a petition for an order of sale, and the giving of notice and an opportunity for hearing, are jurisdictional and essential to the power of the court to order the sale; but, if the court has by the petition and notice, acquired jurisdiction, errors afterwards in the exercise of it, however gross, will not render the decree invalid. ID.-SUFFICIENCY OF PETITION-DESCRIPTION OF REAL ESTATESTATEMENT OF GENERAL FACTS.-Under section 1537 of the Code of Civil Procedure, as amended in 1874, no sale of real estate is made invalid by reason of the omission to give in the petition a description of all the real estate of which the deceased died seised or the value or condition of the different parcels, and the petition is sufficient to support the validity of a decree for the sale of the property, where it states general facts showing that the sale was

necessary.

ID.-ORDER OF SALE-IRREGUlar Order NUNC PRO TUNC.-Where, on the return day of an order to show cause why an order to sell real estate should not be made, a hearing was had and proofs were made, and a decree was ordered directing the sale, and, on a subsequent: day, another order of sale was made, referring to the same petition, and reciting that the order theretofore made had been vacated for errors, and the sale took place under the second order, such order must be deemed a nunc pro tunc order, though not made so in form, and must be regarded as the decree rendered at the hearing, although by a mistake a different decree was then entered.

ID. REFERENCE OF BOND TO DATE OF VACATED ORDER.-A bond for the sale of real estate is not invalidated by the fact that it referred to

the order of sale as made at the date of the hearing, though the order of that date was vacated, and the order under which the sale was made was actually dated at a subsequent date, where the latter order sufficiently shows that it was intended to be nunc pro tunc, and that its true date would have been the date of the hearing, and the bond was approved after the date of the nunc pro tunc order. ID. ERROR IN ORDERING SALE-VALIDITY OF SALE.-Any error of the court in ordering a private sale rather than a public sale, or in determining that a sale was necessary, does not affect the validity of the sale.

ID.-PURCHASE BY ADMINISTRATRIX FROM PURCHASER-VIOLATION OF CODE-VOIDABLE ACT-RESCISSION.-A contract by the administratrix with the purchaser at the administrator's sale to purchase the property from him before the confirmation of the sale, is a violation of section 1576 of the Code of Civil Procedure, but does not render the sale or conveyance to the administratrix absolutely void; but it is only voidable within a reasonable time at the election of the heirs or other persons interested in the estate, who must rescind and restore to the purchaser the money paid as a consideration. ID.-ACTION BY HEIRS TO QUIET TITLE-FRAUD NOT PLEADED.— Where the heirs of the decedent brought an action to quiet title as against the purchasers at the administrator's sale they cannot rely upon fraud not pleaded to set aside the title procured by the defendants.

ID.-ANSWER-DENIAL OF TITLE-DEFENSE REFERRING TO ADMINISTRATOR'S SALE-AIDER OF COMPLAINT.-The fact that the answer, in addition to a denial of plaintiff's title, pleaded further defenses respecting the administrator's sale, and claimed that the plaintiff was estopped from assailing it; that the sale had been ratified, and that the defendants, in case the sale was held void, were entitled to be subrogated to the rights of creditors of the estate as against the heirs, cannot change the theory of plaintiff's action to quiet title, or aid the complaint so as to entitled plaintiff to a rescission of the sale as fraudulent, no fraud or notice of fraud being alleged in the complaint, or rescission sought therein.

APPEAL from a judgment of the Superior Court of Alameda County and from an order denying a new trial. JOHN ELLSWORTH, Judge.

The facts are stated in the opinion of the court.

Hutchinson & Campbell, and Donald Y. Campbell, for Appellants.

The probate sale was valid, there being no failure of the court to acquire jurisdiction, and it cannot be held void for failure literally to comply with all the directions of the statute, but a substantial compliance is enough, and mere errors in the exercise of jurisdiction

will not invalidate the sale. (Burris v. Adams, 96 Cal. 664; Richardson v. Butler, 82 Cal. 174; 16 Am. St. Rep. 101; Stuart v. Allen, 16 Cal. 501; 76 Am. Dec. 551; Code Civ. Proc., sec. 1537; Wilson v. Hastings, 66 Cal. 243; Richardson v. Musser, 54 Cal. 196.) Plaintiff and his grantor are estopped to question the administrator's sale, his grantor having received and retained the proceeds of the sale. (Stockton Sav. Bank v. Staples, 98 Cal. 189; Bigelow on Estoppel, 533, 579; Scott v. Jackson, 89 Cal. 258; Carter v. Allen, 21 Gratt. 241; Swain v. Seamens, 9 Wall. 254; Nell v. Dayton, 43 Minn. 242, 244; Robertson v. Bradford, 73 Ala. 116; Davis v. Gaines, 104 U. S. 386; Goodman v. Winter, 64 Ala. 410; 38 Am. Rep. 13; Schenck v. Sautter, 73 Mo. 46; Moore v. Hill, 85 N. C. 218; Field v. Doyon, 64 Wis. 560; Vallette v. Bennett, 69 Ill., 632; Henderson v. Herrod, 23 Miss. 434; Tipton v. Powell, 2. Cold. 19; Smith v. Wert, 64 Ala. 34; Watt v. Scott, 3 Watts, 79; Gowan v. Jones, 10 Smedes & M. 164; Moore v. Greene, 19 How. 69; Freeman on Void Judicial Sales, ed. 1890, pars 43, 50.) The plaintiff cannot rely upon fraud not pleaded. (Burris v. Adams, supra; Wetherly v. Straus, 93 Cal. 283; Capuro v. Builders' Ins. Co., 39 Cal. 123; Oroville etc. R. R. Co. v. Plumas, 37 Cal. 354; Leszinsky v. White, 45 Cal. 278; Castle v. Bader, 23 Cal. 75; Goodwin v. Goodwin, 59 Cal. 560; Estate of Kidder, 66 Cal. 487; Truebody v. Jacobson, 2 Cal. 269; Hicks v. Murray, 43 Cal. 515; Green v. Hayes, 70 Cal. 276; Gregory v. Bovier, 77 Cal. 122.) The purchase at the administrator's sale was not void. (Boyd v. Blankman, 29 Cal. 20; 87 Am. Dec. 146.)

Sharp & Bolton, for Respondent.

A proper petition for the sale of real estate is essential to give the court jurisdiction to order a sale. (Estate of Boland, 55 Cal. 315; Pryor v. Downey, 50 Cal. 398; 19 Am. Rep. 656; Haynes v. Meeks, 20 Cal. 312; Wilson v. Hastings, 66 Cal. 245; Estate of Rose, 63 Cal. 348; Kertchem v. George, 78 Cal. 597; Gharky v. Werner, 66 Cal. 388.) The sale was void, the administratrix having

taken a deed to a portion of the property before the sale was confirmed. (Code Civ. Proc., sec. 1576; Civ. Code, sec. 1667; Jones v. Hanna, 81 Cal. 509; Bergin v. Haight, 99 Cal. 52; Harrison v. McHenry, 9 Ga. 164; 52 Am. Dec. 435; Chandler v. Moulton, 33 Vt. 247; Woodbury v. Parker, 19 Vt. 353; 47 Am. Dec. 695; Mills v. Goodsell, 5 Conn. 475; 13 Am. Dec. 90; Holman v. Johnson, Cowp. 341.) The sale being void, could not be made operative by ratification. (Greenhood on Public Policy, 8-35, 529-51; Danielwitz v. Sheppard, 62 Cal. 339; Civ. Code, Bec. 3513; United States v. Grossmayer, 9 Wall. 75; Moss v. Shear, 25 Cal. 45; 85 Am. Dec. 94; Kelsey v. Abbott, 13 Cal. 609.) The receipt of money or consent to the sale does not estop. (Flege v. Garvey, 47 Cal. 377; Hill v. Den, 54 Cal. 7; McCracken v. San Francisco, 16 Cal. 627; Billings v. Morrow, 7 Cal. 175; 68 Am. Dec. 235; Price v. Sturgis, 44 Cal. 595; Farish v. Coon, 40 Cal. 50.)

TEMPLE, J.-This is an action to quiet title, and the complaint contains only the allegations that plaintiff is the owner of the demanded premises, and the defendants claim title to the same adversely to plaintiff. Defendants claim under a probate sale.

Plaintiff's grantor, Annie Church, now Mrs. Spaulding, and defendant, Mrs. McNeil, were practically sole heirs of James Kennedy, deceased, from whom both parties derive title. I say practically, for James Kennedy died intestate, leaving a widow, Mrs. Spaulding's mother, who took one-half the estate, and before the administration was closed herself died testate, leaving Miss Church. sole devisee. Her will was probated, and all her estate distributed to Miss Church. It is agreed that plaintiff simply represents Miss Church, who is interested in this suit as plaintiff.

Mrs. McNeil is the sole surviving child of James Kennedy, deceased, and his sole heir. She was also administratrix upon his estate.

Respondent contends that the probate sale under which the defendants claim is void, because:

1. Neither the petition for the sale nor the order of sale contain a statement of the jurisdictional facts.

The determination of this question depends somewhat upon the nature of the tribunal. The order was made by the superior court of Sonoma county in 1887.

That court has general jurisdiction derived from the constitution. We have in this state no probate court, but superior courts are given jurisdiction of all matters of probate just as they are given jurisdiction of cases at law and in equity.

The grant of jurisdiction in regard to matters of probate is contained in the general definition of the jurisdiction of the court. After stating various classes of cases, or matters of which the court has jurisdiction, it is said, "and of all such special cases and proceedings as are not otherwise provided for." The court is not, therefore, while sitting in probate, a statutory tribunal, and does not derive its power from the act of the legislature. Nor are probate proceedings classed by the constitution as special proceedings.

If the administration of an estate can be called a "judicial remedy," then it is classed as a special proceeding in the code, which divides all "remedies" into adversary actions and special proceedings.

It is a proceeding in rem which is not, in the technical sense, such a special proceeding unknown to the framework of the common law as will change the presumptions which attach to the action of the court, making it pro hac vice a court of inferior and limited jurisdiction.

If this was ever a matter of doubt it was set at rest by the case In re Burton, 93 Cal. 459. It was there said. "No distinct court of probate' has been created or recog nized by the present constitution of this state. The constitution has created superior courts and has given them original jurisdiction of the subject matter of various classes of actions and special proceedings, more or less aistinct from each other; among which are 'all actions at law which involve the title or possession of real prop.