Appeal from the Third District.

Bill to set aside a decree for fraud.

Mariano Castro was the owner and in possession of the “ Solis Rancho,” situate in Santa Clara county. A negotiation for the sale and purchase of the land was had in November, 1845, between Mariano Castro and the defendant, Julius Martin. The price was fixed, but the trade was disturbed by a protest of Galen Castro, the brother of Mariano, who came in and claimed to be the owner of the land. Galen proposed to Mariano that both should join in the conveyance to Martin and divide the price between them; but Mariano declined, insisting that the land belonged to him. Gilroy, then Alcalde of San Ysidro, by request of the parties, then drew what is termed the contract, a translation of which is as follows:

“ Before me, in the year 1845, in the month of November, Judge of this San-Ysidro.

“A contract or sale was made between Mariano Macario (meaning Mariano Macario Castro) and F. J. Martin, of the rancho which formerly was owned by Joaquin Solis, near the llagos, and was as follows: For the sum of $1,000, one hundred dollars in money and nine hundred in goods, which was agreed to by each party; whereas Galen Castro protested against the sale, and said that he was the owner of the rancho, and that said Mariano Castro or Macario had no right to sell the said rancho. The said Martin wished to buy it for himself, and he sold it to him for the aforesaid sum; then the two agreed to go and see who was the legitimate owner, and which of the two parties of the above contract could possess whenever he wished to goand, therefore, I give this in this San Ysidro, this date.

(Signed.) “ Juan Gilroy.”

Mariano and Galen each went off to get their title papers, and consented that Martin in the meantime might take possession of the rancho. Gilroy gave the contract drawn by him to Martin. A few days afterwards Galen brought his papers to Gilroy, who decided that they were not good, and so informed Martin, who thereupon declined to accept Galen’s title.

Soon afterwards, Mariano brought his title papers. Gilroy examined them, and told Martin the papers did not constitute a good title to the land. Martin then declined to accept this title.

Before the contract was drawn, Martin paid Galen twenty-five dollars on account, but nothing to Mariano. Both Mariano and Galen called for the money and goods (the price of the land) from time to time, but never got either or any portion of the same.

Martin did not take possession of the rancho. Mariano continued to occupy the rancho up to the time of his death, about the year 1850, and his family remained in possession until 1852. He left as heirs at law: his widow, Rufina Galindó de Castro, and his children, Maria Antonia, Ignacio, José Maria, Maria Conception, Antonio, Jorge and Rosa, of whom the four last named were infants.

On the twenty-sixth of March, 1850, Martin filed his complaint to enforce the contract, and to compel a deed, to which Galen Castro and all the plaintiffs in the present suit were made parties, except José Maria Regla, F. A. McDougall and the three minor children of Juan Anzar, to wit: Francisco, Anatolia and Policinio— said Regla and McDougall having become interested in the estate by marriage since the decree in the former suit, and the three children of Anzar having been born since. Summons was issued on the twenty-seventh of August. The return of the Sheriff is : “ Served by leaving a copy of this summons, also a copy of the complaint, at the last place of Galen Castro’s abode for himself and each of the defendants, he and all the within named being absent from the county. August 30th, 1850.” On the twenty-ninth of August, 1850, Galen Castro appeared without attorney, and files answer, admitting he executed the contract, the receipt of twenty-five dollars on account, and offers to make a deed, &c. On the nineteenth of September, 1850, a separate and final decree was entered against Galen Castro; requiring him to make a deed of the rancho to Martin in thirty days, allowing Martin to retain the money in his hands, subject to the order of the Court, and that plaintiff have leave to amend his complaint and issue alias process.

On the eleventh of January, 1851, the plaintiff, without amending his complaint or issuing any alias process, and without any further service of summons or notice, caused the default of all the other defendants to he entered; and on the eighteenth of the same month, a decree was entered against all, except Galen Castro, requiring them to make a deed of the premises to Martin within thirty days, Martin to pay into Court-dollars, subject to the order of the Court thereafter to be made determining to whom the money should go.

On the first of March following, upon the suggestion of certain attorneys that no legal service had been made, the decrees were vacated as to all defendants, except Galen Castro, and plaintiff ordered to take out alias summons. On the seventh of April, 1851, one Clarkson, at the request of Wattson, one of the attorneys of Martin, took out letters of administration upon the estate of Mariano Castro, deceased. Clarkson was not acquainted with any of the heirs of Mariano Castro, and knew nothing of the affairs of the estate. The letters were granted without any actual notice to the heirs. Clarkson was a friend to Martin, and became administrator to oblige him and his attorney. On the first of May, 1851, Martin filed an amended complaint, setting out the death of Mariano Castro, the appointment of Clarkson as administrator, and praying that he be made a party. Clarkson, on the thirtieth of April, 1851, indorsed thereon a waiver of service of process and of amended and original complaint. June 3d, 1851, without further service of process, the defaults of Clarkson and Juan Anzar were entered. June 4th, 1851, Anzar and Clarkson filed separate demurrers and answers, setting up that the contract was never made; and, if made, was void, and also the Statute of Limitations. June 11th, 1851, Martin filed another amended complaint; and on the seventeenth of June, 1851, on motion of plaintiff, the cause was dismissed as to all of the heirs of Mariano Castro, deceased, continuing the action against Clarkson, administrator, alone.

August 4th, 1851, Clarkson filed a demurrer on the grounds, mainly, that the contract set up did not entitle plaintiff to a decree; that under it, plaintiff could not have specific performance until it had been adjudged who, whether Mariano or Galen, had title; and that the land, on the death of Mariano, went to his heirs and not to the administrator. Demurrer sustained on the twenty-seventh of October, 1851, with leave to plaintiff to amend, and directing that the heirs of Mariano be made parties.

Some time in 1851, Rufina, the widow of Mariano, intermarried with José Maria Regla; and November 27th, plaintiff filed an amended complaint against Galen Castro, Clarkson, administrator, and all of the present plaintiffs, except F. A. McDougall and Francisco, Anatolia and Policinio, the children of Juan Anzar.

This complaint sets forth the alleged contract for the land, the payment by Martin, at the date of the contract, of twenty-five dollars to Galen Castro, and twenty-five dollars to Mariano as an earnest of the bargain, and a tender of the money and offer to perform the contract by Martin before suit brought. Summons issued Decernher 3d, 1861, and April, 1852, and served on all parties shortly after.

Nothing more was done in the cause until May 4th, 1853, when, upon motion of Martin’s attorney, one Carolan Mathews, a farmer, not a lawyer, Martin’s intimate friend and partner in the business of farming, and who was at that time heavily in debt to Martin, was appointed guardian ad litem for Jorge Castro, Antonio Castro, Maria Rosa Castro and Maria Conception Castro, who were represented to be under the age of fourteen years, though in fact Jorge Castro was fourteen years of age and José Antonio was over the age of fourteen. Mathews was neither a friend or relative of the infants.

July 18th, 1853, Mathews waived service of summons, filed answer of general denial, and stipulated with plaintiff to refer the cause to Frederick Hall, a friend of Martin, as referee, to try the case and report judgment. The other defendants had not answered, and did not answer.

Plaintiff’s counsel appeared before the referee, and introduced as witnesses Gilroy and Galen Castro ; and also put in evidence the contract drawn up and signed by Gilroy—or rather, the memorandum of a contract. This was all the evidence, so far as appears, none of the defendants appearing by attorney or otherwise ; and on the twenty-second of July, the referee filed his report, finding the facts as alleged in the complaint, except as to the alleged payment of twenty-five dollars on account to Mariano, and the alleged tender or offer by Martin and demand for the deed. Upon the report, an absolute decree was entered July 30th, 1853, against all but Galen Castro for a specific performance, &c. The Clerk was made commissioner to make the deed, and Martin was required to pay $1,000 into Court, subject to further order. These constitute all of the papers, orders and proceedings in the cause.

The summons on the last amended complaint was served on Juan Anzar and Maria Antonio his wife in April, 1852; and in November, 1852, the said Juan Anzar died, leaving his widow, Maria, and the three infant children, Francisco, Anatolia and Policinio. No notice was taken of the death of Anzar, and no subsequent service was made upon his widow ; nor was any guardian appointed for his children—the decree running against Juan Anzar as well as the other defendants. Maria Antonio, about a year after the entry of the decree, became the wife of F. A. McDougall, and died in 1855.

When Gilroy was examined before Hall, the referee, and whilst testifying about Mariano Castro’s returning with his title papers and exhibiting them to him, the Alcalde, in presence of Martin, and what he told Martin, and Martin’s refusal to accept the title, the referee stopped the witness and said he did not want to hear anything upon that subject.

Hone of the defendants answered or participated in any of the proceedings, except Clarkson, Galen Castro and Juan Anzar, the latter of whom filed an answer and demurrer to one of plaintiff’s amended complaints, as before stated.

The defendants have never called for the $1,000, which still remains in Court.

Plaintiffs here, heirs of Mariano Castro, of age, and, with the exceptions before named, defendants in the suit of Martin resulting in a decree for specific performance of the contract between him and Mariano Castro, deceased, now bring suit' to set aside said decree. The complaint sets out the foregoing facts, orders and proceedings seriatim, and charges, in substance, that all of Martin’s proceedings from the beginning to the end of the suit were fraudulent, and designed to wrong plaintiffs here out of their inheritance. The main charges of fraud are, that Martin, after the death of Mariano Castro, conceived the design of defrauding the heirs of the Rancho through the memorandum of contract made by Gilroy; that for the purpose of carrying out this fraudulent design, he procured Clarkson to be appointed administrator of the estate, and began legal proceedings to compel him to execute a deed of the ranch ; that failing in this he turned his case into a Bill of Equity against the heirs of the deceased for specific performance of the alleged contract of sale of the ranch, and in pursuance of his original fraudulent design procured the appointment of Mathews, a friend and partner, as guardian ad litem, with whom he arranged to have Hall made referee; that through this arrangement, as well as fraud practiced before the referee in the examination of witnesses, a report was fraudulently obtained and also a decree of Court confirming it; that plaintiffs herewith were uneducated, native Californians, ignorant of the English language and laws and course of proceedings in the Courts of this State; that the appointment of Clarkson as administrator of the estate of Mariano Castro, deceased, and of Mathews as guardian ad litem, was without plaintiffs’ knowledge or consent, etc.; and that they did not learn of these doings of Martin, nor these proceedings, until within a year before the commencement of this suit.

Defendant in his answer denies all fraud, and claims that all his proceedings were regular. The case was tried before the Court, and its findings negative the frauds alleged, and the bill was accordingly dismissed. The Court below, in a written opinion, puts the case entirely upon the question of fraud in fact; that is, fraud in the conduct of Martin in procuring his decree, holding that for errors of law in the proceedings in the first suit, or in the decree, the remedy, as the case stands, was by appeal, citing 19 How. 808. The complaint here does not allege the omission to give the infants a day in Court, after arriving at age, to show cause against the decree as a ground of fraud.

Plaintiffs appeal.