The

tenth interest in a water ditch claimed by plaintiff. complaint avers in substance that plaintiff is owner and entitled to possession of an undivided tenth of a certain water ditch, from Sept. 18, 1858, to August 24, 1859, and hence entitled to receive the rents and profits; that defendants, knowing plaintiff's rights, and being the owners and in possession of other undivided four tenths of the ditch, have assumed control of plaintiff's one tenth, and collected and appropriated to their own use the rents and profits thereof, and refuse to pay the same.

Defendants demurred, on the ground that the complaint did not state facts sufficient to constitute a cause of action, and answered denying generally the allegations of the complaint, and averring, among other things, ownership and possession of the ditch. Demurrer overruled. On the trial it was shown that plaintiff held a claim against one Wheeler, a resident of Shasta county, who died seized of the one tenth interest claimed by plaintiff; that he obtained judgment for the amount against Reed, then administrator of Wheeler's estate; that Reed resigned his office without paying the judgment, and upon the petition of plaintiff as creditor, D. D. Harrill, public administrator, was appointed administrator of the estate; and that Harrill, not having administered, Swasey, his successor in office, on the application of plaintiff, was anthorized by the probate court to take possession of the estate, to be disposed of in pursuance of the statute; that Swasey and the probate judge allowed the judgment of plaintiff, and the property in question was sold by Swasey under order of the probate court, plaintiff becoming the purchaser, and receiving a deed Nov. 11, 1858, the sale being confirmed by the court; that Dec. 18, 1858, defendants, being aware of Wheeler's claim to the property and also of plaintiff's judgment and purchase, leased the premises to E. & M., who are in possession, paying rent to defendants. No letters of administration were issued to Reed, Harrill or Swasey.

In tracing title, plaintiff offered in evidence all the proceedings in the Probate Court of Shasta County relative to the estate of Wheeler. Defendants objected on the ground that the petition of Reed for letters does not state facts sufficient to give the probate court jurisdiction. The petition states,

among other things, that "one John H. Wheeler, late of the county of Shasta aforesaid, on or about the twenty-fourth day of July, 1853, departed this life, leaving at the time of his death effects in said county subject to distribution." Objection overruled and evidence admitted.

When plaintiff offered in evidence his petition that Swasey, as public administrator, be authorized to take charge of and administer as administrator de bonis non upon Wheeler's estate, defendants objected, on the ground that special letters of administration should have been issued to Swasey. Overruled and evidence admitted. Judgment for plaintiff for the rents and profits.

Defendants appeal.

E. GARTER, for appellants.

R. T. SPRAGUE, for respondent.

BALDWIN, J., delivered the opinion of the court, FIELD, C. J., concurring.

This was a suit to recover money collected by defendants as the rents and profits of one tenth interest in a water ditch. The defendants it seems were, or assumed to be, in possession of this property, claiming an ownership in a portion of the ditch, and collected the rents for the whole, including the share which would fall, on a proper division, to the interest of the plaintiff. The defendants demurred to the complaint. The point is taken here, that the plaintiff, being a tenant in common, can not maintain this action to recover his share of the rents and profits of his co-tenant; and Pico v. Columbet, 12 Cal. 420, is cited to sustain this proposition. But that case embodies a different principle. It has no application to the case of money received by one tenant in common from sales of water or profits derived from the business of a ditch or mine. Indeed, these operations may be regarded as partnerships, so far as this matter is concerned, the shareholders being regarded as partners entitled to participate in the profits derived from the business of carrying on a ditch or the sales of water. In the case of Goodenow v. Ewer, 16 Cal.

461, we had occasion to review the case of Pico v. Columbet, and need only refer to the opinion there to show the true construction of the former case.

The facts here show that this ditch property was rented by the defendants, and that a sum of money was realized by the defendants from the lease. For so much of this sum as falls to the share of the plaintiff the defendants are liable in this action; the money may be considered as money had and received by defendants to the plaintiff's use.

The other points made touch the question of the plaintiff's title to this share of the ditch property. He deduces his title from a sale made by a public administrator under order of the probate court. To the proceedings of that court, as evidencing the title, two objections are made: first, that the court of probate had no jurisdiction, as in the petition for an order granting administration on the estate of the decedent, it does not appear that his last place of residence was Shasta county. The phrase used in this connection is, that the dece lent was "late of," etc. But this point seems to be disposed of in the case of Beckett v. Selover, 7 Cal. 233, and we think that the decision on this question ought not to be disturbed.

It is next objected that letters of administration were not issued to the public administrator. But if the actual issuance of these letters be necessary in order to authenticate the title of an administrator, in any proceeding of this sort, after a grant of administration has been regularly made, we think there is no necessity for such issuance to a public administrator, who has been duly authorized to administer by the judg ment of a court having jurisdiction. The general language in Rogers v. Hoberlein, 11 Cal. 120, was not designed to decide more than that the public administrator must show a grant of administration upon the particular estate; but this grant may be shown, in the case of public administrators, by the production of the order or a copy. At all events the mere failure to issue the letters does not affect the jurisdiction of the

court.

The point as to the sufficiency of the deed is not well taken. Judgment affirmed.

VOL. XI-23

BRADBURY v. BARNES ET AL.

(19 California, 120. Supreme Court, 1861.)

Partner may bid at sale of partner's interest. There is no rule of law preventing, under ordinary circumstances, a partner from purchasing the interest of his copartner when exposed to public sale.

No fiduciary relation in such case. The rule controlling action of trustee toward his beneficiary does not apply against such purchase.

Facts taking case out of the general rule. But where, while he has in his hands large funds of the company, he causes to be bought in, in the name of third parties, judgments against the company or a tax title, he will be presumed to have so bought to protect the company, and his associates are bound to him in contribution only.

Appeal from the Seventeenth District.

Bill by one member of "The American Quartz Mining Company" against his co-members and others, for dissolution and account, and for other purposes. The business of the company was to extract gold from quartz rock. The case was tried by the court, and the following facts found, to wit: The property of the company consists of a quartz mill, lead and ditch in Sierra county, the business of the company being transacted and its books kept by a president, secretary and treasurer. In September, 1859, a quantity of quartz rock be longing to the company was crushed in the company's mill, and yielded $7,073.98, no part of which was credited on the books of the company, but the whole was received and appropriated by defendant Barnes, none of it going to the other members, or for their debts, except as hereinafter mentioned. October 7, 1859, one Andrews obtained judgment against the company for $2,588 and $24.68 costs, and under execution thereon the sheriff sold the property of the company, on the 29th of the same month, to one Crafts, for $2,756.02, and executed to him a certificate of sale, which he at once assigned to defendant Barnes, who furnished the money bid according to previous arrangement between them. November S, 1859, one Cunningham obtained judgment against the company for $2,310.97 and $49 costs, and under it the sheriff, 1Perens v. Johnson, 3 Sm. & G. 419.

December 3, 1859, sold the same property to Crafts, and executed to him a certificate of sale, which he, on the same day, assigned to Barnes. Crafts bought the demand of Cunningham before judgment for $2,254 furnished by Barnes, who supposed the demand to be in judgment. The sheriff also sold the property for the State and county tax of 1859 to one Ellis, who received a certificate of sale, and subsequently sold and assigned the same to Barnes for $119. The company is in debt, but to whom or in what amount does not appear. All parties interested desire the judicial dissolution of the company.

On the foregoing facts, the court below concluded in law, "that defendant Barnes, having funds of the partnership in his hands, made the purchase of the certificates of sale of the company's property, and the interest therein conveyed, as trustee for the partnership, and therefore must be restrained from transferring or disposing of the same; that defendant. White, the sheriff, should be restrained from making deeds for the property described in said certificates, and that said certificates must be canceled; that an accounting must be had between the partners, and between the partnership and third persons, which will be taken by the receiver and reported to this court; that in the accounting between the partners defendant Barnes should be charged with the sum of $7,073.98, received by him as proceeds of the said quartz rock, and credited with the sums paid for said sheriff's certificates of sale; that said partnership must be dissolved; that the partnership property must be sold by the sheriff in the same manner and upon the same notice as is required upon sales of real property under execution at law, and the proceeds paid into court to be applied, 1st, to the payment of the costs herein, including the amount allowed and to be allowed to the receiver; 2d, to the payment of the liabilities of the partnership of third persons; 3d, to the payment of the debts due from the partnership to its individual members; 4th, the remainder to be divided among the partners in proportion to the shares or interests by them respectively held in the partnership."

Judgment accordingly. Defendants appeal.

MCCONNELL & GARBER, for appellants.