It is settled law in this state, and has been ever since the decision in Beckett v. Selover, 7 Cal. 215, S. C., 68 Am. Dec. 237, that on an application to sell the real estate the heir may dispute the validity of the claims on which the petition is based, although they have been allowed by the executor or administrator and probate judge; that the petition to sell is a substitute for an action against the heir, who must be cited, and then first has his day in court, and that the "allowance" is only prima facie proof of the claim.

In Estate of Crosby, 55 Cal. 574, a petition had been presented and granted to sell real estate to pay a claim seventeen years after the claim was allowed. After reviewing the authorities, the court on page 586 said :—

"A full examination of the foregoing and other cases in which it was admitted that the statute of limitations did not apply will show it to have been held, nevertheless, from the very nature of the proceedings and the character of the duties imposed upon the courts where the estates of deceased persons are administered, as well as from the various provisions of the statutes of different states, which, however they may differ in detail, are all impressed with an evident legislative intent that the proceedings shall be promptly inaugurated and continuously prosecuted without unnecessary delay; that the courts of probate retain the power, and it is their duty to refuse an order granting leave to sell where the delay amounts to laches."

The court then, after stating that it could see nothing in the facts appearing in the findings to excuse the delay of seventeen years which had occurred in the case, further said:

"It would seem that the circumstances which can excuse a delay, otherwise unreasonable, must be such as arise out of the peculiar condition of the administration, and such as have prevented the executor or administrator from moving more expeditiously. In any event we can

not conceive of a case in which a delay to petition for more than seventeen years after qualification of an administrator could be held reasonable."

The order directing the sale was reversed, and the court below was directed to dismiss the petition.

In this case the defendant delayed for thirteen years to petition the court for an order to sell the property to pay his claim, and no excuse was given, or attempted to be given for the delay. During that time the rents, issues, and profits of the property, as returned by defendant, were $6,820.85, and his expenditures as administrator amounted to $4,955.70. He may have thought his claim bore good interest, and that he could take his own time to wind up the estate and pay it; but if so, he was mistaken. The delay being without excuse, was unreasonable, and if in 1881 he had applied for an order to sell the property, his application would have been denied. The fact that, instead of applying for such order, he went to the plaintiff, and, without explaining to him the condition of the estate, or telling him what or whose claims were against it, or why his interest in it was worth little or nothing, induced him to execute the deeds, and power to Patton, can put the defendant in no better position than he would have been in if he had applied for an order. The rule invoked by counsel, therefore, does not apply.

The other points made in the case do not require special notice.

In our opinion the judgment and order should be affirmed.

SEARLS, C., and FOOTE, C., concurred.

The COURT. For the reasons given in the foregoing opinion, the judgment and order are affirmed.

Hearing in Bank denied.

[No. 9468. Department One. September 27, 1886.]

PROPER BOOKS OF ACCOUNT DISCHARGE. - Section 49 of the insolvent act of April 16, 1880, does not prohibit the discharge of an insolvent merchant or tradesman who was engaged in business as such, but did not keep proper books of account prior to the passage of the act.

ID. IMMATERIAL ISSUE

JUDGMENT.

--

The petition for the discharge of the insolvent alleged, and the evidence conclusively proved, that the insolvent had not been engaged in any business before the 20th of July, 1881. On the hearing of the petition, the court, against the objection of the insolvent, submitted to the jury the issue whether or not he had kept proper books of account since the 16th of June, 1880, that being the day when the insolvent act took effect. On this issue the jury found in the negative, and a judgment refusing a discharge was thereupon entered. Held, that the issue as submitted was immaterial, as the insolvent was not engaged in business before the 20th of July, 1881, and that the judgment based thereon was erroneous.

APPEAL from an order of the Superior Court of Santa Cruz County refusing to discharge an insolvent.

The facts are stated in the opinion of the court.

F. J. McCann, Tyler & Tyler, and Underwood McCann, for Appellant.

Lesser & Hall, and J. M. Lesser, for Respondents.

MCKINSTRY, J.-The motion to dismiss the appeal has been heretofore denied.

Oppositions were filed to the discharge of Luke Lukes from his debts under the insolvent law.

The issues made by the oppositions and the answers thereto were submitted to a jury, who found against the opponents upon all the issues submitted save one.

Among the objections to the discharge was this: "That said Luke Lukes, being a merchant and tradesman, did not, since the 16th of June, 1880 keep proper books of account." The petitioner denied in his answer

LXXI. CAL.-8

that "since the sixteenth day of June, 1880, he did not keep proper books of account," and averred that "he kept proper books of account during all the time he was engaged in business." The jury found that Luke Lukes had not kept proper books of account "since the 16th of June, 1880."

The petition for discharge alleges that "your petitioner is, and for more than six months next preceding the filing of this petition has been, a resident of the county, etc., and has, since the 20th day of July, 1881, been engaged in the business of milling and manufacturing flour at the county of Santa Cruz," etc. The petition was filed

January, 1883.

.

Section 49 of the act of April 16, 1880, provides: “No discharge shall be granted if the debtor, being a merchant or tradesman, has not, subsequently to the passage of this act, kept proper books of account."

It is manifest that the clause relates to merchants or tradesman. The words "subsequently to the passage of this act" are a limitation upon the general prohibition of the discharge of a merchant or tradesman who has not kept proper books, and authorize the discharge of a merchant or tradesman who was engaged in business as such, but who did not keep proper books prior to the date referred to.

There is nothing in the case tending to show that the petitioner was a merchant or tradesman, or that he was engaged in any business prior to July 20, 1881, and the uncontradicted testimony proved that he had been engaged in "milling grain and selling the products thereof" since that date.

There was no express finding that he had ever been a "merchant or tradesman." When the issues to be submitted to the jury were being settled, the petitioner asked the court to submit the issue, "Did Luke Lukes keep proper books of account since the twentieth day of July, 1881? But the court adopted - and the same was sub

sequently submitted to the jury the issue, "Did Luke Lukes keep proper books of account since the sixteenth day of June, 1880?" the same being the date when the insolvent law took effect. The petitioner objected to the settlement and submission of the issue last recited, upon the grounds, first, that the time specified is not within. any of the issues made by the pleadings herein; second, that the same is immaterial. The court overruled the objections, and petitioner duly excepted.

If it be conceded that the petitioner was a "merchant or tradesman" from and after the date when he commenced the business of milling and selling flour and other products of the mill, the court below erred in submitting the issue to the jury; and as the judgment refusing the discharge was based on the special verdict of the jury, the judgment is erroneous.

As the case was presented, it was immaterial whether the petitioner kept any books prior to July 20, 1881. For aught that appears from the findings of the jury, he kept proper books after that date.

Judgment reversed and cause remanded for further proceedings.

MYRICK, J., and Ross, J., concurred.

[No. 9612. In Bank.. September 27, 1886.]

JOHN C. WHITE, RESPONDENT, v. GEORGE B. DOUG

LASS, APPELLANT.

JUDGMENT

FINDING

ADMISSION IN PLEADINGS

EVIDENCE. A judgment based upon a finding against an admission in the pleadings, or contrary to the evidence, is erroneous and will be reversed, unless it appears that the judgment should have been the same if the objectionable finding had not been made.

UNIVERSITY LANDS GRANT OF STATE MAY PRESCRIBE CONDITIONS OF SALE. Under the congressional grant to the state of lands for the use of an agricultural college, the state as owner, for the purposes of the grant, had the right to select the lands from sur