By the Court, Crockett, J.:
■ 1. The deed from Peter Davidson to his wife and his son, Peter A. Davidson, vested the estate in them in equal moieties as tenants in common in fee simple.
2. The price for which the property was sold to Hensley was $18,000, of which there was paid in cash to Peter Davidson as guardian, and to his wife, the sum of $11,633, and the remainder of the purchase-money was paid by the discharge by Hensley of a subsisting lien on the property for $2000, and the surrender of a promissory note for $4334 due to him from Peter Davidson. The court finds that at the time of the sale, the husband and wife agreed that these sums “should be applied to and constitute part of the consideration and purchase-price of said land.” It is clear the guardian had no authority to accept payment otherwise than in cash for the ward’s portion of the purchase-money. But the cash payment exceeded the ward’s portion of the whole amount agreed to be paid; and the wife, with the consent of her husband, having agreed that the discharge of the lien and the surrender of the note by Hensley should be-accepted as payment pro tanto, she will be held in a court of equity to have consented that these sums should be applied towards the satisfaction of her share of the purchase-money. It was competent for her, with the consent of her husband, thus to dispose of any portion of her interest in the fund. (Terry v. Hammond, 47 Cal. 32.) They must be presumed to have known the law, and that the guardian could not lawfully accept anything but money in payment of the ward’s share of the purchase-price; and having agreed that the discharge of the lien and the surrender of the note should be accepted as [357]*357payment pro tanto, it must be deemed a payment on her account and not on account of the ward.
3. The wife having united in the conveyance to Hensley, she has no longer any interest in the property; and Peter A. Davidson’s share of the purchase-money having been fully paid to his guardian in cash, there is no balance due to him from Hensley or his estate.
4. It is contended that the statute authorizing the sale by the guardian is unconstitutional and void, on the ground that in passing it the Legislature assumed to exercise powers of a judicial nature, which it is forbidden to do by the Constitution.
In examining this question it is to be observed, in limine,' that at the time of the passage of the act there was no general statute in force authorizing the sale of the real estate of a minor, except for his education or maintenance, or the payment of debts. But the statute under review does not authorize a sale for either of these purposes. It does not appear from the recitals of the act that a sale was necessary on either of these grounds. On the contrary, the consideration on which the Legislature apparently acted was that it would be more advantageous to the minor to sell the property and reinvest the proceeds in other property for his benefit—a case not provided for by the general law as it then stood. The act recited that the property was a gift from the husband and father to the wife and minor child, and that after the conveyance he had erected upon it valuable improvements, and desired to remove with his family to another county; and with that view wished to sell the property to invest the proceeds in other property for the benefit of his wife and child. It is then provided that upon qualifying as guardian and executing a bond with sureties in double the value of the property, he may sell it at public or private sale, and upon the confirmation of the sale by the Probate Court, as in other cases, he is authorized, in conjunction with his wife, to execute a conveyance to the purchaser, which shall be effectual to convey the title of the wife and child. It will be observed that there is coupled with the exercise of the power two conditions, viz.: first, [358]*358that the sale shall be confirmed by the Probate Court; and second, that the wife shall unite in the conveyance, so that the entire property shall be sold, and not merely the undivided interest of the minor. It was doubtless supposed that a more advantageous sale could be effected in this method than by the sale of only the undivided interest of the child. The general law then in force did not provide for such a case. None of the courts had authority to "decree a sale of this character, however advantageous it may have been to the minor; and we must infer that in this condition of affairs the Legislature determined that it would be to the interest of the child to authorize a sale by the guardian, subject to confirmation by the Probate Court, and a reinvestment of the proceeds in other property for the benefit of the ward. It was merely to convert the real estate of the minor into money, on the most advantageous terms, to be reinvested in other property for his benefit—a result which could not be accomplished through the courts as the law then stood. "Was this the exercise of judicial power by the Legislature ? Waiving the question, whether under the statute it would have been competent for the Probate Court to disaffirm the sale if it had been of opinion that under all the circumstances it would be more advantageous to the minor that the property should not be sold, I think the ■weight of authority is to the effect that this was not an exercise of judicial power by the Legisláture. In Rice v. Parkman (16 Mass. 326), the case was that, by a special statute, the Legislature authorized the father of minor children, as their guardian, after giving a proper bond to the judge of probate, to sell and convey the lands of the minors and to put the proceeds at interest on good security. There was then in force a general law, under which a license to sell the land might have been granted by the court after appropriate proceedings; in which respect the case differs from the one at bar. A sale having been made by the guardian under the special statute, the minors, on arriving of age, brought an action against the purchaser to recover the land, on the ground that the statute was void. In that case, as in this, it was contended by counsel that, in author[359]*359izing the sale, the Legislature had assumed to exercise powers of a judicial nature. But the court held the statute to be valid, and placed its decision distinctly on the ground that, in passing it, the Legislature did not exercise judicial power. In Davison v. Johonnot (7 Met. 388), a similar question arose and was decided in the same way. Dewey, J., in delivering the opinion of the court, said: “The act was not a judicial one. The proceeding does not deprive the party of his property. The only effect was to change his estate from real to personal assets, the legal interest in the property, or the avails thereof, being wholly secured for his benefit. It was an act passed by the Legislature upon the application of Davison’s guardian, the person whom the law had placed as the legal representative to watch over and protect the interest of the ward, and must be assumed to have been done, not adversely to his interest, but for his benefit." In Cochran v. Van Gurlay (20 Wend. 365), a similar question was involved, and in delivering the opinion of the court the Chancellor said: “It is clearly within the powers of the Legislature as parens patria
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By the Court, Crockett, J.:
■ 1. The deed from Peter Davidson to his wife and his son, Peter A. Davidson, vested the estate in them in equal moieties as tenants in common in fee simple.
2. The price for which the property was sold to Hensley was $18,000, of which there was paid in cash to Peter Davidson as guardian, and to his wife, the sum of $11,633, and the remainder of the purchase-money was paid by the discharge by Hensley of a subsisting lien on the property for $2000, and the surrender of a promissory note for $4334 due to him from Peter Davidson. The court finds that at the time of the sale, the husband and wife agreed that these sums “should be applied to and constitute part of the consideration and purchase-price of said land.” It is clear the guardian had no authority to accept payment otherwise than in cash for the ward’s portion of the purchase-money. But the cash payment exceeded the ward’s portion of the whole amount agreed to be paid; and the wife, with the consent of her husband, having agreed that the discharge of the lien and the surrender of the note by Hensley should be-accepted as payment pro tanto, she will be held in a court of equity to have consented that these sums should be applied towards the satisfaction of her share of the purchase-money. It was competent for her, with the consent of her husband, thus to dispose of any portion of her interest in the fund. (Terry v. Hammond, 47 Cal. 32.) They must be presumed to have known the law, and that the guardian could not lawfully accept anything but money in payment of the ward’s share of the purchase-price; and having agreed that the discharge of the lien and the surrender of the note should be accepted as [357]*357payment pro tanto, it must be deemed a payment on her account and not on account of the ward.
3. The wife having united in the conveyance to Hensley, she has no longer any interest in the property; and Peter A. Davidson’s share of the purchase-money having been fully paid to his guardian in cash, there is no balance due to him from Hensley or his estate.
4. It is contended that the statute authorizing the sale by the guardian is unconstitutional and void, on the ground that in passing it the Legislature assumed to exercise powers of a judicial nature, which it is forbidden to do by the Constitution.
In examining this question it is to be observed, in limine,' that at the time of the passage of the act there was no general statute in force authorizing the sale of the real estate of a minor, except for his education or maintenance, or the payment of debts. But the statute under review does not authorize a sale for either of these purposes. It does not appear from the recitals of the act that a sale was necessary on either of these grounds. On the contrary, the consideration on which the Legislature apparently acted was that it would be more advantageous to the minor to sell the property and reinvest the proceeds in other property for his benefit—a case not provided for by the general law as it then stood. The act recited that the property was a gift from the husband and father to the wife and minor child, and that after the conveyance he had erected upon it valuable improvements, and desired to remove with his family to another county; and with that view wished to sell the property to invest the proceeds in other property for the benefit of his wife and child. It is then provided that upon qualifying as guardian and executing a bond with sureties in double the value of the property, he may sell it at public or private sale, and upon the confirmation of the sale by the Probate Court, as in other cases, he is authorized, in conjunction with his wife, to execute a conveyance to the purchaser, which shall be effectual to convey the title of the wife and child. It will be observed that there is coupled with the exercise of the power two conditions, viz.: first, [358]*358that the sale shall be confirmed by the Probate Court; and second, that the wife shall unite in the conveyance, so that the entire property shall be sold, and not merely the undivided interest of the minor. It was doubtless supposed that a more advantageous sale could be effected in this method than by the sale of only the undivided interest of the child. The general law then in force did not provide for such a case. None of the courts had authority to "decree a sale of this character, however advantageous it may have been to the minor; and we must infer that in this condition of affairs the Legislature determined that it would be to the interest of the child to authorize a sale by the guardian, subject to confirmation by the Probate Court, and a reinvestment of the proceeds in other property for the benefit of the ward. It was merely to convert the real estate of the minor into money, on the most advantageous terms, to be reinvested in other property for his benefit—a result which could not be accomplished through the courts as the law then stood. "Was this the exercise of judicial power by the Legislature ? Waiving the question, whether under the statute it would have been competent for the Probate Court to disaffirm the sale if it had been of opinion that under all the circumstances it would be more advantageous to the minor that the property should not be sold, I think the ■weight of authority is to the effect that this was not an exercise of judicial power by the Legisláture. In Rice v. Parkman (16 Mass. 326), the case was that, by a special statute, the Legislature authorized the father of minor children, as their guardian, after giving a proper bond to the judge of probate, to sell and convey the lands of the minors and to put the proceeds at interest on good security. There was then in force a general law, under which a license to sell the land might have been granted by the court after appropriate proceedings; in which respect the case differs from the one at bar. A sale having been made by the guardian under the special statute, the minors, on arriving of age, brought an action against the purchaser to recover the land, on the ground that the statute was void. In that case, as in this, it was contended by counsel that, in author[359]*359izing the sale, the Legislature had assumed to exercise powers of a judicial nature. But the court held the statute to be valid, and placed its decision distinctly on the ground that, in passing it, the Legislature did not exercise judicial power. In Davison v. Johonnot (7 Met. 388), a similar question arose and was decided in the same way. Dewey, J., in delivering the opinion of the court, said: “The act was not a judicial one. The proceeding does not deprive the party of his property. The only effect was to change his estate from real to personal assets, the legal interest in the property, or the avails thereof, being wholly secured for his benefit. It was an act passed by the Legislature upon the application of Davison’s guardian, the person whom the law had placed as the legal representative to watch over and protect the interest of the ward, and must be assumed to have been done, not adversely to his interest, but for his benefit." In Cochran v. Van Gurlay (20 Wend. 365), a similar question was involved, and in delivering the opinion of the court the Chancellor said: “It is clearly within the powers of the Legislature as parens patria to prescribe such rules and regulations as it may deem proper for the superintendence, disposition and management of the property and effects of infants, lunatics, and other persons who are incapable of managing their own affairs.” In discussing this point, Judge Cooley, in his work “ On Constitutional Limitations,” says: “ This species of legislation may, perhaps, be properly called prerogative remedial legislation; it hears and determines no rights; it deprives no one of his property. It simply authorizes one’s real estate to be turned into personal, on the application of the person representing his interests, and under such circumstances that the consent of the owner, if capable of giving it, would be presumed. It is in the nature of the grant of a privilege to one person, which, at the time, affects injuriously the rights of no other.” At page 98 he says: “The rule upon this subject, as we deduce it from the authorities, seems to be this: If the party standing in position of trustee applies for permission to make the sale, for a purpose apparently for the interest of the cestuis que trust, and there are no ad[360]*360verse interests to be considered and adjudicated, the case is not one which requires judicial action; but it is optional with the Legislature to grant the writ by statute, or to refer the case to the courts for consideration, according as the one course or the other, on consideration of policy, may seem desirable.”
Tested by this rule, the statute under review is not unconstitutional, and in passing it the Legislature did not exercise power of a judicial nature. No adverse rights were to be affected by the sale, and there is nothing to indicate that the application was not made in good faith and in the interest of the minor.
In such cases it would doubtless be the wiser policy to refer all such applications to the courts under general laws; and several of the States have incorporated into their constitutions provisions to that effect. But in this and many other States, a contrary practice has prevailed, and estates of great value have been acquired and are now held under special statutes of this character. If the power of the Legislature in this respect is to be restricted beyond the rule to which I have adverted, it must be done by an amendment to the Constitution.
I think the judgment and order should be reversed and cause remanded for a new trial, and it is so ordered.
Mr. Justice Bhodes dissented.
Wallace, C. J., being disqualified, took no part in the decision.