the Civil Code, and such appraised value did not exceed that sum, the superior court must, by order, set it off to the persons in whom the title is vested by the preceding section"; and also provides for the payment of existing liens thereon. It is therefore clear that the court has jurisdiction over the homestead for some purposes; and it seems to follow that if the court, from ignorance of the fact that it was a homestead, or by inadvertence, or mistake of law, made an order not authorized by the statute, its proceedings, however erroneous, would not be without jurisdiction, and hence would be valid as against a collateral attack. Indeed the record of the probate proceedings does not disclose the fact that there ever was a declaration of homestead, and therefore, upon the face of the record, the superior court had jurisdiction. It follows that if the administrator, having failed to disclose his interest in the property under the declaration of homestead, had appealed to this court upon the record of that case, assuming that all other proceedings were sufficient, the jurisdiction of that court must have been affirmed; and, if so, he could not now question it.

But plaintiff (respondent here) further contends that there were jurisdictional defects in the proceedings. prior to the petition for the sale of the land, and thereunder specifies several particulars. Only one of these need be noticed, as the sufficiency of the petition for letters of administration, and of the notice of hearing, are not attacked. That objection is that the letters were issued and the oath of office taken by the administrator on September 6th, while his bond was dated the 10th and approved on the 11th. Section 1388 of the Code of Civil Procedure provides that, "Every person to whom letters testamentary or of administration are directed to issue must, before receiving them, execute a bond," etc. It is true an administrator is not authorized to act until he has given bond, but the mere order of time in which the act of receiving the letters and the act of giving the bond are performed will not affect the validity of his appointment, nor of any act performed

by him after giving the bond, especially where no official act was performed, or attempted to be performed, in the mean time. None of the cases cited by respondent sustains his contention that in such case new letters of administration must issue after the bond is given. It is not claimed that any official act was performed by Bell before his bond was made and approved.

It is also insisted that the petition for the sale of the land was insufficient to give the court jurisdiction to order the sale; that the order first made was vacated and the order under which the land was sold was afterward entered without a new order to show cause, or any continuance entered, and that the bond required by the statute was given under the first order, and none under the second.

It is not necessary to discuss the nature or source of the jurisdiction of the superior courts in such cases, nor to restate the requirements of section 1537 of the Code of Civil Procedure, in reference to petitions for the sale of real estate by an administrator. These questions, as well as the other objections above specified, were fully considered and decided by this court in Bank in the recent case of Burris v. Kennedy, 108 Cal. 331, and upon the authority of that case the jurisdiction of the court in this case to order the sale must be sustained. There were many errors and irregularities in the proceeding, but, as was said in Burris v. Kennedy, supra, "if the court had jurisdiction, errors in the exercise of it, however gross, would not render the decision invalid."

But conceding, for the sake of the argument, that the court had no jurisdiction and that the sale was void, it would seem to be beyond question that Bell would have been estopped to claim title to the land as against the defendant, and, if so, the plaintiff claiming under Bell, with knowledge of the facts, is equally estopped. Bell asserted in a solemn judicial proceeding that the title to the property was in the estate of his deceased wife, and not in himself. He received the purchase money and applied it to the payment of the mortgage debt, which was a

valid lien upon the land, for which he, as well as the estate, was liable, and to the payment of the funeral expenses and costs of administration which he had incurred, and, having conveyed the property to the defendant, put him in possession. There was no surplus arising from the sale. He was the sole beneficiary, and, upon respondent's theory, the sole owner. To retain these benefits resulting from the payment of the purchase money by the defendant, and, at the same time, recover the property from him, would be a fraud which a court of equity will not permit. He had full knowledge of all the facts affecting his title. His mistake was one of law, as was that also of the defendant; but to permit Bell to retain the purchase money and the property, too, is to give him a very profitable relief from his mistake, while it would visit upon the defendant a severe penalty for the same mistake. It may be that upon the discovery of his mistake he could have rescinded the sale, but, if so, it could only have been upon full restoration of the purchase money.

It is conceded in the stipulation of facts that the defendant saw an abstract of title of the property, and, therefore, had the means of knowing the true state of the title, but he was not a lawyer, and his good faith is not questioned. He knew that Bell had taken out letters of administration upon the estate of his deceased wife, that this was the only property claimed to belong to the estate, and that the court had recognized it as such in making the order of sale. Under these circumstances, it would be going far to say that he was guilty of negligence in relying upon what laymen would ordinarily regard as a judicial determination that the land in question was the property of the estate. Indeed, the court itself seems to have relied upon the solemn representation of Bell that it was the separate estate of his wife. Bell was not injured. There is no pretense that he did not receive the full value of the property, nor has either he or the plaintiff offered to return to the defendant the purchase money paid. It was not the receipt of the

money under a mistake of law, but the retention of it while assuming to convey the land to another by Bell, and the assertion of title by the plaintiff, with knowledge of the facts, that constitutes the fraud upon the defendant and creates the estoppel.

In Goodman v. Winter, 64 Ala. 410, 38 Am. Rep. 13, a tenant for life sold and conveyed the premises, the sale and conveyance purporting to pass the fee. It was held that the alienation passed only the particular estate, and had no operation on the estate in remainder, but it was held that "if the remaindermen were adults, and accepted a part of the purchase money as compensation for the estate in remainder, they would, in a court of equity, be estopped from asserting their legal estate, and the court would compel them to convey to the purchaser, or bar them from asserting their legal title against him. The acceptance of a part of the purchase money as compensation for the remainder would be a ratification and. adoption of the unauthorized alienation and conveyance.

. . It is a plain principle of justice, of right, and of law that a man cannot accept the benefits and reject the burdens of a transaction."

A stronger case, in some of its circumstances, than the one at bar is that of Robertson v. Bradford, 73 Ala. 116. There, the intestate died seised of the premises, leaving as his only heir at law a daughter, then a minor of tender years. The administrator obtained an order to sell, and sold the house and lot, and applied the proceeds to payment of the debts of the decedent and the maintenance of the child. The order directing the sale was void for want of jurisdiction. The daughter, while a minor, married, and by her husband as next friend. brought an action of ejectment to recover the premises, whereupon the grantee of the purchaser, the daughter having then attained majority, filed a bill to enjoin the prosecution of the ejectment case. It was held that the sale was a nullity, but the purchaser having paid the value of the premises, and the proceeds having been applied to the payment of debts against the estate and

the maintenance of the appellant in her helpless infancy, thus relieving the personal estate, and restitution not having been tendered or intended, she was estopped in a court of equity from asserting her legal title to the prejudice of the purchaser or his privies. The court further said: "There is no principle of law better settled, or resting on wiser considerations of public policy and higher considerations of justice, than that no person who has received and retains the fruits of a judicial proceeding can be heard to assail it, either for irregu larity or illegality, to the prejudice of others who have in good faith relied and acted upon it as valid. In the application of this principle it is not of importance that the proceeding is void because of a want of jurisdiction in the court entertaining and sanctioning it. The foundation of the principle is that parties cannot act upon and adopt such parts of a transaction as may be favorable and beneficial to themselves, and, at the same. time, repudiate it so far as it may involve them in corresponding duties to others who have yielded the right and advantage to them."

In Deford v. Mereer, 24 Iowa, 118, 92 Am. Dec. 460, it was held, Dillon, C. J., writing the opinion, that where heirs, after arriving of age, with full knowledge of all the facts and in the absence of fraud or mistake of fact, receive and retain the purchase money arising from the sale by their guardian of their interest in certain lands, they are thereby estopped from questioning the validity of such sale, and that this principle is not limited to cases of voidable sales, but extends to those that are void. (See, also, Freeman's Void Judicial Sales, sec. 50, and cases there cited.)

These cases are clearly distinguishable from Biddle Boggs v. Merced Min. Co., 14 Cal. 279, 368, and Davis v. Davis, 26 Cal. 23, 85 Am. Dec. 157, cited and relied upon by respondent. There, the effect, if the alleged estoppel had been sustained, would have been to deprive the party of his property without compensation, because of acts or declarations made in ignorance of their rights,