Woodward

—We concur m the judgment upon the ground last discussed in the opinion of Mr. Justice Paterson. As to the other point relating to the question of the jurisdiction of the superior court to appoint a receiver of the property in the actions referred to, we express no opinion.

I dissent. In my opinion the writ of prohibition should be made peremptory. A sale of property under an order of court void on its face *278 will, of course, confer no title upon the purchaser, and there are remedies by which the owners may ultimately secure a judicial determination of the invalidity of the purchaser's claim, but in the mean time the marketable value of the property is impaired, if not destroyed, and this injury can be prevented in no other way than by prohibition. No other remedy is fully adequate to prevent injury.

< But aside from this, I think the order appointing a receiver of the real property was an excess of jurisdiction.

The superior court has no power to appoint a receiver, except as authorized by the statute, and the only authority claimed for the court in this case is subdivision 6 of section 564 of the Code of Civil Procedure, which reads as follows: “In all other cases where receivers have heretofore been appointed by the usages of courts of equity.” There has never been any usage of courts of equity to appoint receivers in actions for the partition of lands between co-tenants, unless, superadded to the facts justi. fying a partition, there were…

This is an application for a writ of prohibition commanding the respondent to refrain from further proceedings upon an order which has been made-appointing a receiver in the case of Woodward et al. v. Raum et al., and authorizing him to sell an undivided interest in the property.

The petition shows that the petitioner and Mary 0». Raum, Helen J. Hutchinson, and Sarah B. Melone, were,, on the 11th of February, 1888, the owners of certains real estate in the city of San Francisco, and known as-Woodward’s Gardens, and that on said day, petitioner;, and Mary 0. Raum, Ely I. Hutchinson, and Sarah B. Melone, were the owners of the personal property used in connection with said gardens, and consisting of animals, curiosities, pictures, statues, etc.; that on said 11th of February, 1888, petitioner and Sarah B. Melone-commenced an action in which they prayed for a partition of said real estate, and if -a partition could not be- had without great prejudice, then for a sale of the premises, and a division of the proceeds among the parties according to their rights; that thereafter the defendants therein, Mary 0. Raum and George E., her husband, Helen J. Hutchinson and Ely, her husband,…