Burris

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: ....

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

. The determination of this question…

I concur in the judgment. I also concur in the opinion of Mr. Justice Temple as I understand it. I do not understand that opinion as declaring any thing more on the subject of jurisdiction than this: that while the superior court, when dealing with probate matters, is to be considered as a court of general jurisdiction, with the same presumptions attach *345 ing to its acts as in any other action or proceeding over which it has jurisdiction, still a proceeding to sell real property of an estate must be instituted as provided by statute; and that the court has no more jurisdiction to decree a sale without a petition than it would have to render a judgment on a promissory note where no action had been instituted by the filing of a complaint. As thus understood the opinion is not in conflict with Pryor v. Downey, 50 Cal. 398 , 19 Am. Rep. 656 , and the long line of cases there cited, and referred to in Richardson v. Butler, 82 Cal. 174 , 16 Am. St. Rep. 101 , which hold that il though the proceeding for the sale occurs in the general course of administration, it is a distinct proceeding in the nature of an action in which the petition is the complaint and the order of sale is the…