Appeal from the District Court, Twelfth Judicial District," City and County of San Francisco.

Henry C. Johnson died intestate at the Pueblo of San Francisco, State of California, about the 26th day of December, 1849, leaving surviving him his wife, Elizabeth Johnson, then residing at said pueblo, his mother, Eliza Moss, and his brothers, F. A. Johnson, ¡Samuel J., James W., Edgar M., and David J. Johnson, and his sister, Selina E. Abraham, wife of Abraham Abraham. The mother, brothers, and sister lived at Cincinnati, Ohio. The deceased left no children or father. At the time of his death deceased owned • One Hundred Yara Lot Humber One Hundred and Hinetysix in said pueblo.

This action was brought by Ryder, who was in possession of a part of said lot, to quiet the title as against Cohn, who, although out of possession, set up an adverse claim to the same.

On the 28th of December, 1849, said wife of deceased presented the following petition to John W. Geary, then Alcalde of said pueblo :

“San Francisco, December 28th, 1849.

“ To his Honor, Judge Geary:

“Sir: It is my wish that letters of administration upon the estate of my deceased husband, Henry D. Johnson, be granted by your Honor to Thomas H. Holt, of this city.

“Yery respectfully, Elizabeth Johnson.”

On the twenty-eighth day of December, 1849, said Geary, as Alcalde aforesaid, made and signed an order appointing Thomas H. Holt administrator of the estate of said Henry D. Johnson, deceased; and on the twenty-ninth day of said December, 1849, said Geary, as Alcalde aforesaid, made, signed, sealed with his official seal, issued, and delivered to said Thomas H. Holt letters of administration upon the estate of Henry D. Johnson, deceased, in the words and figures following, to wit:

“Estate op Henry D. Johnson, deceased.

“Probate Court.—Letters of Administration.

“ Whereas, It hath been made to appear that Henry D. Johnson recently died intestate, within this district; and whereas, Elizabeth Johnson, relict of the said deceased, hath petititioned this Court that letters of administration be granted unto Thomas H. Holt, of this district aforesaid; therefore, I, the undersigned, First Alcalde and Judge of Probate in and for the District of San Francisco, in consideration of the fitness and responsibility of the said Thomas II. Holt, do hereby grant unto the said Thomas H. Holt full power to administer the estate of the said Henry D. Johnson; to ask, collect, recover, and receive all the debts, dues, and demands, rights, credits, and interests belonging to or accruing to the said estate; to pay all lawful debts of the said estate, and to do all things pertaining to the duties of administration, according to the tenor of these presents.

‘ ‘ Firstly. Reporting to this Court, within one month from the date of these presents, inventories of every species of property belonging to the estate of the said Henry D. Johnson, deceased, (as far as known,) and, unless the property shall have been previously converted into money, appraisements of the same made under oath by persons appointed by this Court, who shall make return of their doings to this Court, or such other Courts as may be established within this district having jurisdiction in such cases, within fifteen days from the date of these presents.

“ Given under my hand and official seal this twenty-ninth day of December, A. D. 1849.

“[l. s.] John W. Geary,

“ First Alcalde and Judge of Probate.

“Attest: James O’Grady, Register.”

On the same day said Holt signed, sealed, and delivered a bond as such administrator to said Geary, as Alcalde aforesaid.

Appraisers were duly appointed, who, on the third day oí January, 1850, returned to the said Alcalde an appraisal oí the personal and real estate, the former being valued at two thousand eight hundred and ninety-six dollars, and the latter at five thousand one hundred and fifty dollars.

On the 11th day of January, A. D. 1850, said Holt, as administrator, petitioned said Geary, as Alcalde aforesaid, to make and issue an order to him, authorizing him to sell all the real estate of said Henry D. Johnson, deceased; said petition being in the words and figures following, to wit:

“ To the Hon. John W. Geary, First Alcalde- of the City of San Francisco:

“ The petition of Thomas H. Holt, administrator of the estate and eifects of Henry D. Johnson, deceased, respectfully showeth :

“ That your memorialist requests your Honor to make and issue an order to him, authorizing him to set up and sell all the real estate of the said deceased, on giving one week’s notice of such intended sale in one or more newspaper or newspapers published in San Francisco, on such terms as shall seem to him for the -best interest of the estate. “ Dated this 9th day of January, 1850. “ Thos. II. Holt.”

On the 11th day of January, A. D. 1850, said Geary, as Alcalde aforesaid, made, signed, sealed with his official seal, and issued an order authorizing, empowering, and ordering said Thomas H. Holt, administrator as aforesaid, to “ set up and sell all the real estate of the said deceased,” Henry D. Johnson; said order being in the words and figures following, to wit:

“By the Hon. John W. Geary, First Alcalde and Judge of Pro-hate of the District of San Francisco:

“It is hereby ordered that Thomas H. Holt, the administrator of the estate ■ and effects of Henry D. Johnson, deceased, do set up and sell all the real estate of the said deceased, by public auction, on such terms as shall seem to him for the best interest of the estate, on giving one week’s notice of such intended sale in one or more newspaper or newspapers published in San Francisco, and that he execute the proper deeds to the purchaser or purchasers thereof at such sale.

“ Given under my hand and official seal, this 11th day of January, 1850, “ [l. s.] Jno. W. Geary, “First Alcalde and Probate Judge.”

On the 25th day of January, A. D. 1850, said Thomas H. Holt, administrator aforesaid, petitioned the Hon. W. B. Almond, Judge of the First Instance of, in, and for said Pueblo and District of San Francisco, and then officially acting as such Judge of First Instance, by a petition in writing, said petition being in the words and figures following, to wit:

“ To the Hon. W. B. Almond, Judge of First Instance in and for the District of San Francisco:

“ The petition of Thomas H. Holt, of the City of San Francisco, in said district, respectfully shows:

“ That he was lately appointed by the Hon. John W. Geary, First Alcalde of the said City of San Francisco, administrator of the property of Henry D. Johnson, lately deceased, in said city, and leaving property therein, a copy of which appointment is hereto annexed, marked ‘A.’ •

“ That afterwards, by an order of the said Hon. John W. Geary, Calhoun Benham and Charles A. Gurley, Esqs., were appointed appraisers of the property of the said deceased, and made an inventory and appraisement thereof, according to law; a copy of which said inventory and appraisement is hereto annexed, marked ‘ B.’

“ That afterwards; on the 11th day of January, instant, on the application of your petitioner, the said Hon. John W. Geary made an order empowering your petitioner to sell the real estate of the said deceased, at public auction, for the purpose of paying the debts of the said deceased; a copy of which said last mentioned order is hereto annexed, marked ‘ C.’

“ But your petitioner shows unto your Honor that he is well advised that the said Alcalde has no jurisdiction in the premises, except, perhaps, to institute the preliminary proceedings in the same, but that the same properly belongs to the cognizance of your Honor, and that further proceedings cannot safely be had in the premises, under the said orders, without the confirmation of your Honor.

“Tour petitioner therefore asks that the said appraisal and inventory may be filed in your Honorable Court, and that your Honor will thereupon take jurisdiction of the premises ; that the appointment of your petitioner as such administrator, and the said orders made for his direction, may be confirmed, and your petitioner directed to proceed therein with the same effect as if the same had been originally made by your Honor.

“Tour petitioner further asks that an order may be entered, requiring creditors and persons having claims against the estate of the said deceased to present the same to your petitioner, at some place in the City of San Francisco, within such time as shall be designated in such order, or that the claims therefor upon said estate be barred, and for the due publication of said order.

“ And that your petitioner may have such further or such other relief as may be just and proper in the premises.

“ Dwinelle & Marshall, Att’ys for Petitioner.” “District of San Francisco, ss. “ Thomas H. Holt, the said petitioner, being sworn, says that the preceding petition is true. Tnos. II. Holt. “ Sworn before me, this 25th day of January, 1850. “ W. B. Almond, Judge,”

Said petition, having annexed thereto, as a part of said petition, a copy of the said letters of administration in said estate, a copy of the said inventory and appraisement in said estate, a copy of the said petition for an order to sell real estate in said estate, and a copy of the said order for the sale of the real estate in said estate, was filed in said Court of First Instance the same day.

On the twenty-fifth day of January, A. D. 1850, said Almond, as Judge aforesaid, signed, made, and issued an order, in the words and figures following, to wit:

“By the Hon. ~Wm. B. Almond, Judge of the First Instance in Civil Causes, in and for the District of San Francisco, and Judge of Probate in the same:

“Whereas, Thomas H. Holt has filed his petition before the said Judge, setting forth that he was lately appointed by Hon. John W. Geary, First Alcalde of the City of San Francisco, administrator of the estate of Henry D. Johnson, deceased, and that the property of said deceased had been appraised, and an inventory thereof made on oath by appraisers appointed by the said Alcalde; and that the said Alcalde had afterwards made an order empowering the said petitioner to sell the real estate of the said deceased, at public auction, which said petition is verified by oath, and is accompanied with letters of administration granted by said Alcalde, and with a copy of said appraisal and inventory and of the order of sale.

“ And whereas, the said Thomas H. Holt has submitted the said matters to the jurisdiction of the said Judge, to take jurisdiction of the said proceedings, and to continue the same with the same effect as if the same had been originally instituted before him.

“It is therefore ordered, that the said proceedings be in all things confirmed, and held of the same effect as if the same had been originally instituated before the said Judge of the First Instance; and that the said Thomas H. Holt be appointed and continue administrator of the said estate, and that he be empowered to sell the real estate at public auction, for the purpose of paying the debts of the said deceased, with the like powers as are prescribed in the said order of sale made in that behalf by the said Alcalde.

“And the said petition of the said Thomas H. Holt praying to that effect, it is ordered, that the said administrator cause a notice to be published, for at least one week, in a public newspaper published in the City of Ran Francisco, requiring all creditors and persons having claims against the estate of the said deceased to present them to the said administrator, in some place to be designated in said notice, within four weeks from the day of the first publication of the said notice, or they will be liable to lose the benefit thereof. And it is further ordered, that if such claims are not presented according to said notice,.or before the final decree in this cause, the said claims may be barred by such final decree, and the administrator decreed to be discharged therefrom.

“And it is further ordered that the said administrator make his future reports, and apply for his future directions, to the said Judge of First Instance.

“Witness the hand and seal of the said Judge this the twenty-fifth day of January, A. D. 1850.

“W. B. Almond, “Judge of First Instance, and Judge of Probate. “Attest: T. 8. Pomeroy, Deputy Clerk.”

Said orderwas filed in said Court.

On the seventh day of February, A. D. 1850, said Almond, as Judge aforesaid-, ordered that the sale of the real estate of ■ said deceased Henry D. Johnson, advertised to take place on that day, be adjourned to some convenient day, by public ¡‘proclamation made at the place advertised for such sale on said day; and that, in the meantime, said administrator have such real estate surveyed and located, and charge the expense thereof to said estate.

On the fourteenth day of February, A. D. 1850, in pursuance of and in compliance with the' order of said Geary, as Alcalde aforesaid, and the order of said Almond, as Judge aforesaid, and after notices of such intended sale in a newspaper published in said Pueblo and District of San Francisco, One Hundred Vara Lot Humber One Hundred and Hinety-six was set up and sold by said Holt, as such administrator, at public auction, at the place specified in said notices, for cash, to wit: for the.sum of three thousand one hundred and fifty dollars, to John W. Dwinelle, he being the highest bidder therefor.

On the fourteenth day of February, A. D. 1850, said Holt, as administrator aforesaid, delivered to said Almond, as Judge aforesaid, and filed in said Court of First Instance, a report of the said sale, and asking that it might be confirmed. The report was accompanied by an affidavit of the printer, showing the publication of notices of sale.

On the fourteenth day of February, A. D. 1850, said Almond, as Judge aforesaid, approved and confirmed said sales of said real estate.

On the fourteenth day of February, A. D. 1850, said John W. Dwinelle paid to .said Holt, administrator as aforesaid, the sum of three thousand one hundred and fifty dollars in cash, as the purchase money of and - for said One Hundred Vara Lot Humber One Hundred and Hinety-six, and on the fifteenth day of February, A. D. 1850, said Holt, administrator as aforesaid, duly made, signed, sealed, and delivered to said John W. Dwinelle a due and regular deed of conveyance, in writing, conveying said One Hundred Vara Lot Humber One Hundred and Hinety-six, and all the right, title, and interest of said Henry D. Johnson, deceased, of, in, and to said One Hundred Vara Lot Humber One Hundred and Hinety-six to said John W. Dwinelle, which said deed was duly acknowledged and recorded.

In the matter of said estate of Henry D. Johnson, deceased, Edward Horton, Esq., appeared as and was attorney for the absent heirs.

A part of said purchase money of said One Hundred Vara lot Humber One Hundred and Hinety-six was applied by said administrator to the payment of the debts of said Henry D. Johnson, deceased, and the balance of said purchase money was, in the month of March, A. D, 1850, paid by said administrator to the said mother, brothers, and sister of said Henry D. Johnson, deceased—said mother, brothers, and sister receiving said balance of said money, and consenting to said payment of said balance of said money. Said mother, brothers, and sister of deceased were aware and knew of the proceedings before said Alcalde and said Judge of First Instance, and the acts of said administrator in said estate, and the said disposition and sale of said real estate and of said One Hundred Vara Lot Humber One Hundred and Hinety-six, when they received the said money, and they acquiesced therein. By due and regular mesne conveyances, in writing, all the right, title, and interest of said John W. Dwindle of, in, and to the premises described in the complaint in this action, being a part of said One Hundred Vara Lot Humber One Hundred and Hinety-six, has been duly conveyed to and was at the commencement of this action vested in the plaintiff, George W. Ryder. By a due and regular deed of conveyance, in writing, said mother, brothers, and sister of said Henry D. Johnson, deceased, conveyed, on the eighth day of May, A. D. 1863, their then right, title, and interest of, in,, and to said One Hundred Vara Lot Humber One Hundred and Hinety-six to the defendant, Louis Cohn. The Court below rendered judgment in favor of the plaintiff, and the defendant appealed. The other facts are stated in the opinion off the Court.