Appeal from the Twelfth Judicial District.

This is an action of ejectment to recover the possession of a lot situated within the limits of the city of San Francisco. Both parties claim title from the same source—from one George Harlan, who died in the county of Santa Clara in July, 1850. The plaintiff claims by a conveyance from Aspinwall, who is alleged to have been at the time the administrator of the estate, executed upon a sale made by order of the Probate Court in November, 1855. The defendant claims by a conveyance from the heirs of Harlan, executed in April, 1854. On the trial, it was admitted that Harlan was at the time of his death a resident of Santa Clara county; that he left a widow, six children—three of whom were minors—and two grandchildren, sons of a deceased daughter; and that at the time of the commencement of this action the defendant was in possession of the premises. It was also admitted that Henry C. Smith was duly appointed by the Probate Court of Santa Clara county administrator of the estate of said Harlan, on the nineteenth day of August, 1850, and on the same day filed his bond, qualified, and commenced acting as administratorthat he filed an inventory, allowed claims against the estate, sold property of the estate under orders of the Probate Court, and from time to time made report to the Court of his acts ; that on the fourteenth day of June, 1853, he applied to the Court for an order to sell certain real property of his intestate to pay the debts outstanding against the estate and the expenses of administration, and such proceedings were had upon his application that on the thirteenth of August, 1853, an order of sale was made by the Court, under which order said real estate was sold in September, 1853, for $19,240 ; that the sale was in October following confirmed by the Court; that on the twenty-ninth of November, 1853, a citation was issued by the Court to Smith, to appear and show cause why an attachment should not issue against him for failure to file his account for final settlement, and that on his failure to appear, an attachment was ordered December 26th, 1853. On the thirty-first of December, 1853, Smith filed the following written resignation: “ Henry C. Smith, administrator of the estate of George Harlan, deceased, hereby resigns his appointment as such administrator, and asks that his resignation be received and he be discharged therefrom. H. C. Smith.”

Thereupon, on the same day, the following order was made by the Probate Court:

“ Row comes Henry C. Smith, administrator of the above estate, and files his resignation as administrator of said estate. It is, therefore, ordered by the Court that the said Henry C. Smith do turn over to John Youtz, Public Administrator in and for the county of Santa Clara, aE the papers and effects in his possession relating to said estate, and that he make a fuE and complete settlement of aE his proceedings relating to said estate to the said John Youtz, Pubhe Administrator as aforesaid, on or before the first day of the next term of this Court; and that when the said Henry C. Smith has fully made such settlement, he and his securities be released from any further EabiHty on said estate. It is further ordered by the Court, that said estate be placed into the hands of the said John Youtz, Pubhe Administrator in and for the county of Santa Clara, for purposes of general administraton.” On the twenty-fourth of January, 1854, Smith presented to the Court what purported to be his final report of the condition of the estate, and of his proceedings therein, showing that he had received $28,357, had disbursed $20,017.13, had a balance in his hands of $8,340.87, and that there were stiE outstanding claims against the estate to the amount of about $6,300. Objections to this account were made by certain of the creditors, after the hearing of which, the Court, on January 25th, 1854, made an order aEowing the disbursements of Smith only to the amount of $14,600, and declaring a certain balance to be due to the creditors; and after a recital that it appeared from said report that there were sufficient funds in the hands of said administrator to pay the debts of said estate found to be due, and which had been aEowed, (Erecting the administrator to pay aE the debts without delay, and to make a final settlement on the first day of the next term, and containing, in reference to the order of December 31st, the foEowing: “It is further ordered by the Court, that the order heretofore made on the thirty-first day of December, A. D. 1853, directing the said Henry C. Smith, as administrator of the estate of George Harlan, deceased, to turn over the said estate to the Pubhe Administrator of Santa Clara county, and the order placing the said estate in the hands of said Pubic Administrator, be and the same hereby is revoked.”

Smith did not make the settlement as directed at the February or March term of the Court, but appeared on the first day of April, in obedience to a citation which had been issued, and moved for leave to file a new report, which was granted, and at the same time auditors were appointed to examine his vouchers and accounts and report thereon to the Court, and an attorney was also appointed to represent the minor heirs. On the twenty-second of April, 1854, Smith presented a final account, approved by the auditors, which showed that he had received $28,657, had disbursed $21,584.50, and still had in his hands funds of the estate to the amount of $7,072.50; that there was a debt allowed and unpaid of $4,604.85, and that there was still certain personal property of the estate in his hands as administrator. On the twenty-fifth of April, the Corn! adopted this report, and ordered that Smith pay into Court the balance of $7,072.50, and also six hundred and thirty dollars, being the value of the personal property of the estate in his hands, which in his report was alleged to have been lost or stolen; and “ that said administrator do at the same time hand into this Court all papers, deeds and whatsoever other property he may have in his possession belonging to the aforesaid estate.”

Subsequently, Smith, upon affidavit, moved the Court to allow an item in his account of $1,000 for extra services and expenses as administrator, which motion, being opposed by the heirs, was heard on the twenty-second of May, 1854, and after the introduction of proofs, was disallowed by the Court. No further proceedings were had in the Probate Court in regard to the administration of the estate of Harlan by Smith, nor was any order made by the Court for his removal or discharge other than as above set forth.

On the eighteenth day of May, 1855, Benjamin Aspinwall presented to the said Probate Court a petition for letters of administration, of which the following is a copy:

“ To the Honorable the Judge of said Court:

“ The petition of Benjamin Aspinwall, of the county of San Francisco, respectfully shows, that George Harlan, late of the county of Santa Clara, is deceased; that he died, according to the best information and belief of your petitioner, sometime in the year 1850; that he left no will; that he left the following named persons him surviving, who are hems or next of kin to said deceased, viz: Joel Harlan, Jacob Harlan, Elisha Harlan, Catherine Harlan and others; that he left real and personal estate in the counties of Santa Clara and San Francisco, and also, as your petitioner believes, in the county of Alameda. Petitioner farther shows, that in August, 1850, one H. C. Smith was by the Probate Court of Santa Clara county duly appointed administrator of the estate of said deceased, and undertook to administer said estate; that while he, said Smith, was so duly in the administration of said estate, your petitioner commenced a suit against him as such administrator in the District Court for the county of Santa Clara, in the State of California, on a claim your petitioner then held against said estate, and did, on the nineteenth day of July, 1853, obtain judgment in said Court against the said H. C. Smith, administrator of said estate, for the sum of $8,104.85, with interest at the rate of ten per cent, per annum, as appears of record in said Court, and to which your petitioner refers. On which judgment the said Smith, administrator as aforesaid, at different times has paid your petitioner the sum of $3,500, which is the only payment that has been made on said claim.

“ Petitioner further shows, that on the twenty-fifth of January, 1854, the said Smith was cited to render a final account of his administration of said estate before the said Probate Court of Santa Clara county, and such proceedings were then and there had as appears of record ; that the said Smith was adjudged to have sufficient funds in his hands belonging to said estate to pay all the debts due from said estate, and ordered said Smith to pay said debts, which he refused to do. Your petitioner further shows, that subsequently thereto he commenced a suit against said Smith and the sureties on his administration bond, in the Superior Court of the city of San Francisco, and recovered a judgment against them for the sum of $4,644.93 damages, besides costs; that he caused executions to be issued to the comities of Santa Clara and Alameda in order to collect the amount of his said judgment; that the said execution so issued to the county of Alameda, where said Smith resides, has been returned “ nulla bona ” wholly unsatisfied; and that your petitioner has as yet been unable to collect anything on the said execution so issued to the county of Santa Clara; and your petitioner believes, and so charges the fact, that the said Smith and his said sureties are all insolvent; all of which your petitioner is able to prove as he believes. Your petitioner further shows, that the administration of the said estate by the said Smith has fully ceased and determined; that your petitioner has never received in payment of his said claim against said estate more than said $3,500. Your petitioner further shows, that there was due him on his said claim against said estate, in judgment as aforesaid, on the sixteenth day of March, 1854, the sum of $4,644.93, which bears an interest of ten per cent, per annum, which is wholly unpaid; that there is real estate in the city of San Erancisco belonging to the estate of said Harlan, deceased, of the value of $15,000 or $20,000, which has never been administered, applied or sold for the payment of the debt of your petitioner, and which your petitioner avers ought to be sold by an order of this Court, and the proceeds of such sale be applied to the satisfaction and payment of his said claim.

“ Wherefore, your petitioner respectfully prays that he may be appointed administrator of the unadministered part of the estate of said George Harlan, deceased, in the capacity of administrator ‘ de bonis non,’ in order that any part of said estate yet remaining unsold may, by an order of this Court, in due and proper form obtained, be sold to pay the debt of your petitioner, and any other just debts against the said estate.

The petition was duly verified.

(Signed.) “ Benj. Asphtwah.”

On the fifteenth day of June thereafter, the Court made the following order, appointing Aspinwall administrator:

“And now again comes Benjamin Aspinwall, by his attorney, L. Archer, and the matter of the application for letters of administration to issue to said Aspinwall as administrator ‘ de bonis non ’ having been taken under advisement, the Court now finds, after hearing the proofs and allegations, that Henry C. Smith had been appointed by this Court administrator of said estate in the year 1850, but that said Smith has not fully administered upon the same; that there are debts still outstanding against said estate, and that there is a large amount of properly belonging to said estate, and that said estate has never been fully administered upon and divided among the heirs. The Court, therefore, grants the prayer of the petitioner. And it is ordered and decreed by the Court, that Benjamin Aspinwall be, and he is hereby appointed administrator 6 de bonis non ’ of all the goods, chattels and effects which remain unadministered upon of the estate of George Harlan, deceased; and it is ordered that the Clerk issue letters of administration to said Benjamin Aspinwall, upon his filing a good and sufficient bond, as required by law, in the sum of $5,000—said bond to be filed in twenty days from the date of this order.”

Aspinwall filed the required bond and duly qualified August 8th, 1855. On the eleventh of August, Aspinwall filed his petition for the sale of real property of the estate, of which the following is a copy: “In Probate Court for the county of Santa Clara. In the matter of the estate of George Harlan, deceased.

“ To the honorable, the Probate Judge of said Court:

.“ The petition of Benjamin Aspinwall respectfully shows that he was duly appointed administrator de bonis non of afi and singular the goods, chattels and effects of George Harlan, formerly of the county of Santa Clara, deceased, on the eighth day of August, 1855. That said estate has heretofore been partially administered by Henry Smith, whose time of administration has whofiy ceased. That no personal estate has come to the hands of your petitioner; nor is there any personal property, to the best knowledge of your petitioner; the said Smith, as such former administrator, having disposed of the whole of the same. Your petitioner further shows that the foEowing described real estate, lying and being in the city of San Francisco, belongs to and is the property of said estate, viz: “ That certain one hundred vara lot, numbered on the official map of the said city ten, and located on the south side of Mission street, between Second and Third streets, of the value of about eight thousand doEars. Also, the foEowing lot, to wit, commencing at the northwest corner of the fifty-vara lot, numbered on the official map of the city of San Francisco three hundred and seventy-three; thence running easterly, on the northerly line of said fifty-vara lot, fifty-eight feet nine inches; thence southerly, on the westerly line of Union Place, thirty-six feet; thence westerly, at right angles, thirty-five feet nine inches; thence southerly, at right angles, forty-one feet six inches; thence westerly, at right angles, twenty-three feet; thence northerly, at right angles, seventy-seven feet six inches, to the point of beginning—of the value of about four hundred dollars.

“ Petitioner further shows, that he formerly recovered a judgment against the said estate, in the District Court of the State of California, for the county of Santa Clara, for about the sum of $8,000, as near as he can recollect. That said Smith, as administrator of said estate, has made two separate payments to your petitioner on said judgments, amounting to about the sum of $3,500. Petitioner avers that there was due to him from said estate, on said judgment claim, the sum of five thousand three hundred and five dollars and fifty-seven cents, on the nineteenth day of January, A. D. 1855, and that he is entitled to interest thereon from that date at the rate of ten per cent, per annum. That he has made every effort in his power to collect and recover said amount from the said Smith, as administrator, from said estate, and from the sureties on the administration bond of said Smith, but without avail or success. Petitioner further saith, that he is informed that one Joel Harlan, one of the heirs of the said deceased, has a claim against said estate; but of the amount or truth thereof your petitioner is not advised, and refers to the records of the said Probate Court, and to the proofs henceforth to be introduced, in respect to the same, if necessary. That there are no other claims or demands against said estate, to the knowledge of your petitioner. And further shows, that the following persons are the only heirs and next of kin of said deceased, to the knowledge of petitioner, namely : Mary Smith, daughter of the said deceased, wife of Henry Smith, of Alameda county; Joel Harlan, (son) of Alameda county; Haney Huff, (daughter) wife of Lucius Huff, of Alameda county; Jerome Van Gorden and George Van Gorden, children under the age of twenty-one years, of Rebecca, daughter of said deceased, and wife of Ira Van Gorden—said Rebecca being dead—of Los Angeles county; George Harlan, Elisha Harlan and Sarah Ann Harlan, minors under the age of twenty-one years, sons and daughter

“ Petitioner further shows that it is necessary to sell the whole, or part of said real estate, to pay the debts of your said petitioner, and any other debt or debts that may be due and owing from said estate, when the same can be ascertained. That he has no other mode or means of recovering the same or any part thereof.

“ Therefore your petitioner prays for the aid of this Court in the premises, and that proceedings may be had and an order made pursuant to the statute in such case made and provided, for the sale of the whole, or so much of the aforesaid real estate as may be sufficient to pay the debt of your petitioner, and such other debts, if any there be against said estate, and that for such minor heirs or next of kin of said deceased as have no guardian, suitable persons may be appointed guardian or guardians to take care of their interests in the premises : and your petitioner will ever pray.

“ Benj’n Aspinwall, Administrator.”

Which petition was duly verified.

On the tenth of November, 1855, an order of sale was made, of which the following is a copy:

“ In the matter of the estate of George Harlan, deceased. And now again comes Benjamin Aspinwall, administrator de bonis non of the above estate, by his attorney, L. Archer, and again presents to the Court his petition heretofore filed herein, praying for an order and decree of this Court to sell a portion of the real property belonging to said estate. Also comes the attorney for the absent and minor hens, and the objections filed by said attorney to the granting of said petition for a sale of real property having been taken under advisement, and the Court now here having considered the matters therein contained, and being sufficiently informed therein, overrules said objections; and it being proved to the satisfaction of the Court that due notice of the said petition, and of the time and place of hearing the same, had been given as required by law, the Court now proceeds to hear and determine the matters in said petition contained; and the proofs and allegations being heard, and the Court being fully satisfied from the same that a sale of the following described property, to wit: (Here follows a description of the two parcels described in the petition for the sale, in the same language as that used to describe them in the petition) is necessary to pay the debts outstanding against said estate, it is therefore ordered and decreed by the Court that the said administrator, Benjamin Aspinwall, do, after giving a good and sufficient bond as required by law, in the penalty of eight thousand dollars, proceed according to law to sell to the highest and best bidder, for cash in hand, the above described real property, as follows: The one hundred-vara lot number ten to be sold in lots of twenty-five by fifty varas, and the remainder of the property in such parcels or parcel as to the said administrator may seem best for the interests of said estate. And it is further ordered by the Court that said administrator, before proceeding to sell the said property in accordance with this order, do give due and lawful notice of the time, place and terms of said sale, and also a description of the property to be sold, by publishing the same for at least six weeks next-preceding the day set for the sale, in the “ San Francisco Daily Herald,” a newspaper published daily in the said city, of San Francisco, and also by posting notices thereof in three of the most public places in the county of San Francisco; said notices to describe the property to be sold with common certainty.”

' At the conclusion of the trial, the defendant’s counsel asked the Court to give to the jury the following instructions:

1st. At the time of the appointment of Aspinwall, by the Probate Court of Santa Clara county, as the administrator of the estate of Harlan, and at the time of the sale of the one hundred vara lot number ten, by Aspinwall, as the administrator of the estate of Harlan, Henry E. Smith was the legally appointed and qualified administrator of that estate. The Probate Court of Santa Clara county, therefore, had no jurisdiction in respect to the appointment of a second administrator, and could confer upon Aspinwall no power to sell. The appointment of Aspinwall was absolutely void; the sale made by him was a nullity; and the deed made by him, as administrator, conveyed no title.

2d. Though Smith may have presented to the Probate Court his resignation as administrator of the estate of Harlan, yet if the same was not accepted by the Probate Court, nor acted upon, but on the contrary the said Smith continued to act as administrator, and the Court continued to deal with him as such, such resignation was ineffectual to divest Smith of his trust, and he continued to be the legal administrator of the estate; and so long as he continued to be such administrator, the Probate Court had no jurisdiction or power to appoint a second administrator. Such appointment was void, and all acts done by the appointee were nullities.

3d. After a sale has been made, under the authority of the Probate Court, of sufficient real property to pay all the debts of the estate, and all expenses of administration and charges against the estate, and the money has come into the hands of the administrator, the creditors of the estate must look alone to the funds in the administrator’s hands for the payment of them claims. So far as the hems of the intestate are concerned, the sale and the receipt of the money by the administrator are a satisfaction of the debts, and the Probate Court is without jurisdiction to order any further sale of property of the estate. Such an order is void, and any sale made under it conveys no title to the purchaser.

' 4th. The petition presented by Aspinwall to the Probate Court, for an order to sell real estate, was defective in not showing the amount of personal estate that came to the hands of the administrator of Harlan’s estate, and in not setting forth all the real estate of which the intestate died seized, or which was then unsold, or the condition of any of the real estate; and said petition did not give to the Probate Court any jurisdiction to make the order of sale, and the order made therein was void, and the sale made under its authority a nullity.

5th. The Probate Court had no jurisdiction to make the order of sale actually made on the petition of Aspinwall, and the order was void for the further reason, that no order to show cause why the order of sale should not be made was made by the Court, and served in the manner directed by the statute.

The Court refused to give any of these instructions, to which defendant excepted. The Court then instructed the jury to bring in ver diet for the plaintiff, to which defendant excepted.

The jury found for the plaintiff, and judgment for him was entered accordingly, from which the appeal is taken.