By the Court, McKinstry, J.:
I. Catherine Harrison could not be continued as natural tutrix, nor be appointed dative tutrix, after her second marriage.
In France, a widow about to marry and desiring to retain the guardianship of her infant children, should secure the assent of a “family meeting” before the second marriage. "If the mother, being guardian, desires to marry again, she is required, before the act of marriage, to convoke a family council, who shall decide whether the guardianship ought to be continued to her. In default of such convocation she shall lose the guardianship entirely; and her new husband shall be jointly and severally responsible for all the consequences of the guardianship which she shall have unduly, continued.*
In Louisiana, when the minor is the child of a first marriage, and the mother has already contracted a second, the judge may confer the tutorship on her “upon the advice of a family meeting convoked for that purpose. ”†
By the law of Mexico, however, where “family councils” are unknown, the mother who marries a second time, “by that act alone,” loses the tutory.‡
In Spain, after the order of April 12, 1839, she could apply on petition, for dispensation of the legal prohibition.§ But the royal order permitting this application was issued after the establishment of Mexican independence, and never had operation in Mexico.
[458] The order purporting to continue Catherine Harrison as tutrix was void, and by that order the alcalde did not obtain jurisdiction of the infants. He cannot be said to have acquired jurisdiction of the persons of the infants by appointing as tutrix one whom he had no power to appoint— the incapacity of the appointee appearing on his record of the proceedings.
II. But Isaac Harrison was appointed “ co-tutor,” and learned counsel have failed to call to our attention any express inhibition of the Spanish or Mexican laws upon the appointment of the stepfather as tutor. He is not included in the list of those declared to be incapable by the Code Hapoleon, or by the Civil Code of Louisiana.*
The prohibitions of the Mexican law extended to women (except in certain instances), to minors, to deaf, dumb, and totally blind persons, to debtors and creditors of the pupil, to soldiers in actual service, to monks, and to others, but not to the stepfather.†
This Court cannot supplement 'the list declared to be incapable by express provision of the Mexican Codes. It is, at least, doubtful whether our ruling could be based on an assumed policy of the Mexican law, as suggested by express provisions bearing on a subject. If this could ever be done, still we cannot, in the present instance, declare that it must have been intended that the stepfather should not be named tutor, because the mother lost the tutory on her marriage to her second husband. Indeed, the policy of different ages and nations has been so variant in respect to the persons proper to receive this trust of guardianship, that a just inference cannot be drawn that one class was intended to be excluded, because another was expressly excluded.
The common law of England gave the guardianship in socage to the next of blood of the child to whom the inheritance could not possibly descend, while, first the father, and then the mother, became guardian by nature, with charge of the person of the infant. The guardianship of the property [459] of the infant was apparently committed by the civil laiu to the person who was entitled to the emoluments of the succession. The law of Scotland, and the ancient law of France, committed the pupil’s estate to the person entitled to the legal succession, because he is most interested in preserving it from waste; but excluded him from the custody of the pupil’s person, because his interest is placed in opposition to the life of his pupil.*
In view of the different ideas which have prevailed upon the subject, it would be extremely imprudent to impute a policy not expressed, or to assume the existence of any implied prohibition.
There was no limitation which excluded the stepfather in the appointment of chancery guardians. Under our statute he may be appointed guardian.†
The Mexican law, like the common law of England, recognized the power of the husband over the wife. By the latter law the husband and wife were regarded as one person, and her legal existence was, in a degree, lost or suspended. Tet she retained some rights, which she could exercise independent of her husband, and chancery often afforded her relief as against the husband himself. It may be true that the laws of Mexico gave wider scope to the independent action of the wife, yet in many respects her condition was inferior to that of her husband.‡ She lost the power of exercising separately many civil rights.§ In Mexico the husband is the head of the family, and the wife is bound to live with him and to follow his every reasonable change of domicile.
There were reasons, therefore, why the mother, under the lawful restraint and natural influence of her second husband, should not be continued in the guardianship, which did not [460] apply to his appointment; he subjecting himself to the direction of the proper officer.
It was the evident purpose of the attorney who conducted the proceedings under review, that the same should take the course provided for by the Louisiana practice; that a “ family meeting” should continue Catherine Harrison as “natural tutrix;” that her husband, Isaac Harrison, should be named “ co-tutor,” and that an imwler-tutor should be appointed. The alcalde undertook to “homologate” the action of the family meeting. Beading the record, one might suspect that the attorney who conducted the proceedings had removed to California from the State of Louisiana.
Nevertheless, Isaac Harrison was appointed tutor. The circumstance, that, in the same order, there was an attempt to continue his wife as natural tutrix, did not invalidate the appointment of her husband, nor derogate from the effects of his subsequent acts.
III. Holding that Isaac Harrison might properly be appointed tutor, little consequence is to be attached to the omission (in the loose papers found in the custody of the county clerk) of an oath of office or bond.
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By the Court, McKinstry, J.:
I. Catherine Harrison could not be continued as natural tutrix, nor be appointed dative tutrix, after her second marriage.
In France, a widow about to marry and desiring to retain the guardianship of her infant children, should secure the assent of a “family meeting” before the second marriage. "If the mother, being guardian, desires to marry again, she is required, before the act of marriage, to convoke a family council, who shall decide whether the guardianship ought to be continued to her. In default of such convocation she shall lose the guardianship entirely; and her new husband shall be jointly and severally responsible for all the consequences of the guardianship which she shall have unduly, continued.*
In Louisiana, when the minor is the child of a first marriage, and the mother has already contracted a second, the judge may confer the tutorship on her “upon the advice of a family meeting convoked for that purpose. ”†
By the law of Mexico, however, where “family councils” are unknown, the mother who marries a second time, “by that act alone,” loses the tutory.‡
In Spain, after the order of April 12, 1839, she could apply on petition, for dispensation of the legal prohibition.§ But the royal order permitting this application was issued after the establishment of Mexican independence, and never had operation in Mexico.
[458] The order purporting to continue Catherine Harrison as tutrix was void, and by that order the alcalde did not obtain jurisdiction of the infants. He cannot be said to have acquired jurisdiction of the persons of the infants by appointing as tutrix one whom he had no power to appoint— the incapacity of the appointee appearing on his record of the proceedings.
II. But Isaac Harrison was appointed “ co-tutor,” and learned counsel have failed to call to our attention any express inhibition of the Spanish or Mexican laws upon the appointment of the stepfather as tutor. He is not included in the list of those declared to be incapable by the Code Hapoleon, or by the Civil Code of Louisiana.*
The prohibitions of the Mexican law extended to women (except in certain instances), to minors, to deaf, dumb, and totally blind persons, to debtors and creditors of the pupil, to soldiers in actual service, to monks, and to others, but not to the stepfather.†
This Court cannot supplement 'the list declared to be incapable by express provision of the Mexican Codes. It is, at least, doubtful whether our ruling could be based on an assumed policy of the Mexican law, as suggested by express provisions bearing on a subject. If this could ever be done, still we cannot, in the present instance, declare that it must have been intended that the stepfather should not be named tutor, because the mother lost the tutory on her marriage to her second husband. Indeed, the policy of different ages and nations has been so variant in respect to the persons proper to receive this trust of guardianship, that a just inference cannot be drawn that one class was intended to be excluded, because another was expressly excluded.
The common law of England gave the guardianship in socage to the next of blood of the child to whom the inheritance could not possibly descend, while, first the father, and then the mother, became guardian by nature, with charge of the person of the infant. The guardianship of the property [459] of the infant was apparently committed by the civil laiu to the person who was entitled to the emoluments of the succession. The law of Scotland, and the ancient law of France, committed the pupil’s estate to the person entitled to the legal succession, because he is most interested in preserving it from waste; but excluded him from the custody of the pupil’s person, because his interest is placed in opposition to the life of his pupil.*
In view of the different ideas which have prevailed upon the subject, it would be extremely imprudent to impute a policy not expressed, or to assume the existence of any implied prohibition.
There was no limitation which excluded the stepfather in the appointment of chancery guardians. Under our statute he may be appointed guardian.†
The Mexican law, like the common law of England, recognized the power of the husband over the wife. By the latter law the husband and wife were regarded as one person, and her legal existence was, in a degree, lost or suspended. Tet she retained some rights, which she could exercise independent of her husband, and chancery often afforded her relief as against the husband himself. It may be true that the laws of Mexico gave wider scope to the independent action of the wife, yet in many respects her condition was inferior to that of her husband.‡ She lost the power of exercising separately many civil rights.§ In Mexico the husband is the head of the family, and the wife is bound to live with him and to follow his every reasonable change of domicile.
There were reasons, therefore, why the mother, under the lawful restraint and natural influence of her second husband, should not be continued in the guardianship, which did not [460] apply to his appointment; he subjecting himself to the direction of the proper officer.
It was the evident purpose of the attorney who conducted the proceedings under review, that the same should take the course provided for by the Louisiana practice; that a “ family meeting” should continue Catherine Harrison as “natural tutrix;” that her husband, Isaac Harrison, should be named “ co-tutor,” and that an imwler-tutor should be appointed. The alcalde undertook to “homologate” the action of the family meeting. Beading the record, one might suspect that the attorney who conducted the proceedings had removed to California from the State of Louisiana.
Nevertheless, Isaac Harrison was appointed tutor. The circumstance, that, in the same order, there was an attempt to continue his wife as natural tutrix, did not invalidate the appointment of her husband, nor derogate from the effects of his subsequent acts.
III. Holding that Isaac Harrison might properly be appointed tutor, little consequence is to be attached to the omission (in the loose papers found in the custody of the county clerk) of an oath of office or bond.
First. In support of the judgment of the court below we may imply a finding that these papers are lost or have been destroyed. After the great lapse of time, and in view of the mode in which the minutes of the proceedings were kept, as well as of the subsequent recognition of Harrison, in his capacity of tutor, by the alcalde, and especially of the approval by that officer of the sale to him, the District Court may wrell have found such loss or destruction of the written evidence of the oath or bond. Prior v. Downey, 50 Cal. 388, has no application to the present case. There the alleged appointment of an administrator was, by its terms, conditional and not absolute; and there was also an express finding by the District Court, that the person claiming to act was never appointed administrator, and never qualified as such.*
Second. The record does not show but that Isaac Harri[461] son took tlie oath and gave bond. In Ryder v. Cohen, 87 Cal. 69, it was held, in effect, that the rule of the common law applicable to courts of general jurisdiction should be applied to the courts of first instance, and except where the records show the contrary, they should be held to have acquired jurisdiction of the persons of the parties in interest.*
The same rule was applicable to the judgment of the alcalde in the present instance, since there being no judge of first instance in the district of San Francisco, the alcalde was authorized to perform all the functions of such judge.†
The rule referred to had no application to the Courts of Probate under our State Constitution prior to the act of March 27, 1858, “ to give to the proceedings of Courts of Probate the same effect as courts of general jurisdiction,” because, before that act, the Courts of Probate were considered courts of inferior and limited jurisdiction; and therein is to be observed another distinction between the present and the case of Prior v. Downey, and other like cases.
Applying the rule mentioned to the proceedings in the alcalde’s court, and in view of the adjudication of the sale by that judge, we must assume that Isaac Harrison did “qualify” as tutor, because the record does not affirmatively show that he did not.
Third. Nor are we prepared to admit that if the record showed the failure to take oath and give bond, the subsequent judgmeut of the alcalde approving of the proceedings of the tutor, notwithstanding the failure, would be void, or more than erroneous. The appointment was of a competent person, and it is by no means certain that the regularity of the mode of the appointment involves a question of jurisdiction.
Fourth. It would seem that by the strict letter of the Mexican law the failure of the appointee to take an oath, or give security, did not render the appointment invalid.‡
[462] Much of what is said above will apply to the absence of the letters of appointment. But, further, the letters, if issued, would be in the possession of the tutor, and, if it be assumed that the letters are better evidence than the minutes of the appointment (and also—although the sale was adjudicated-—that the objection, if made, would havó been an effective objection)—the precise objection that defendant did not offer the best evidence of the appointment was not made by the plaintiff in the court below.
IY. It was manifestly within the jurisdiction of the alcalde to determine whether the petition presented to him showed proper cause for the sale of the real estate of the infants. “Tutors or curators ought not to sell, etc., unless it should be to pay .the debts of the father, to marry other children of the father, or for other indispensable causes,” etc.* We cannot say that the cause set forth in the petition was not indispensable, within the meaning- of the law.
Y. The tutor had authority, with the approval of the judge, to purchase at the auction sale, and the deed of the alcalde to Isaac Harrison conveyed the title.
The sale was ordered and conducted by the alcalde, and must be held to have received his judicial sanction and approval.
By a law of the Partidas, it is decreed: “And we say that no guardian can purchase anything belonging to the estate of his pupil, unless authorized to that effect by the local judge, or some other guardian who has a joint care of the minor with himself. ”†
There can be no doubt that the foregoing would permit the purchase by the tutor of his pupil’s real estate, when the purchase is approved by the local judge, although, when there is a co-tutor, his assent may also be necessary.‡
It is said, however, that the doctrine of the Partidas is in direct conflict with Law 1, Title 12, Book 10, of the Nov[463] itiima Becopilacion. If this be so, the latter must prevail.*
That law may be translated: “ every man who is an agent or guardian of orphans, or of other persons, is unable, nor ought he to buy any of the property of the person for whom he administers; and if he shall so buy, publicly or privately, the purchase will not be valid, and will be set aside, and four times the value of the property bought will be forfeited to our treasury.”
This language does not necessarily imply a repeal of the older law. Property may be purchased openly (publicly, without concealment,) yet not under the supervision of a judicial officer. Had it been the intention to put an end to such sales in the presence of the judge we may suppose that the intention would have been expressed in unmistakable words. The law found in the Hueva and Hovisima Becopilacion is contained in an older body of royal ordinances—the Ordenanzas Beales de Castilla—and its object is explained by a learned commentator on the Partidas. In his commentatory on Law 5, Title 5, of the Fifth Partida, Gregorio Lopez says, that in his day (by virtue of Title five, book five of the Ordenanzas Beales'—which is a reference to the same law as that found in the Becopilaciones) it was not permitted to a tutor or curator, either publicly or privately, to buy his ward’s property; but whether by that ordinance the law of the Partidas, on which he is commenting, was changed so that a tutor could not buy his ward’s property, [464] even with the sanction of the judge, was questionable. At first view it would seem so, because under the Partidas a tutor could not buy without the approval of another tutor, or of a judge; he could not interpose his own authorization in favor of himself. Nevertheless, that the Ordenanza did not change the law of the Partidas, seems to be the better construction. For by the ancient common law, (the Roman law,) according to the prevailing opinion, a tutor could buy of a ward, above infancy, (more than fourteen years of age,) without other authorization than his own, if he did it openly and in good faith. In support of this he cites certain commentators on texts -of the Roman law, to which he refers. In the opinion of Lopez it was this practice—the practice of dealing with the ward without the express approval of the judge or co-tutor—which the law of the Ordenanzas Reales (since copied into the Recopilación) was intended to prohibit. If, therefore, he adds, the tutor buys in good faith, with the approval of the judge or of the other tutor, his purchase is valid, as set forth in the law of the Partidas.*
It would seem that the construction, said by Gregorio Lopez to be the true one, is recognized by Aso and Manuel in their work “ Institutes of the Civil Law of Spain.”†
In view of the language of the laws and of the purpose for which the later law seems to have been promulged, as well as of the construction given by the Spanish writers we have consulted, we are of opinion that the law found in the Novísima Recopilación did not repeal the law of the Partidas.
Judgment and order denying a new trial affirmed.