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with a description of the different parcels of land sold to each purchaser; the name of the purchaser; the price paid or secured; the terms and conditions of the sale; and the securities, if any, taken. The report shall be filed in the office of the Clerk of the county where the property is situated.
$ 297. If confirmed, conveyances may be executed.
If the sale be confirmed by the Court, an order shall be entered, directing the referees to execute conveyances and take securities pursuant to such sale, which they are hereby authorized to do. Such order may also give directions to them respecting the disposition of the proceeds of the sale.
§ 298. Proceeding if a lien-holder become a purchaser.
When a party entitled to a share of the property, or an encumbrancer entitled to have his lien paid out of the sale, becomes a purchaser, the referees may take his receipt for so much of the proceeds of the sale as belongs to him.
$ 299. Conveyances shall be recorded, and will be a bar against parties.
The conveyances shall be recorded in the county where the premises are situated, and shall be a bar against all persons interested in the property in any way, who shall have been named as parties in the action; and against all such parties and persons as were unknown, if the summons had been served by publication, and against all persons claiming from them, or either of them.
§ 300. Proceeds of sale belonging to parties unknown shall be invested for their benefit.
When there are proceeds of a sale belonging to an unknown owner, or to a person without the State, who has no legal representative within it, the same shall be invested in securities on interest, for the benefit of the persons entitled thereto.
$ 301. Investment shall be in the name of the Clerk of the county.
When the security of the proceeds of sale is taken, or when an investment of any such proceeds is made, it shall be done, except as herein otherwise provided, in the name of the Clerk of the county where the papers are filed, and his successors in office, who shall hold the same for the use and benefit of the parties interested, subject to the order of the Court.
$ 302. When the interests of the parties are ascertained, securities shall be taken in their names.
When security is taken by the referees on a sale, and the parties interested in such security, by an instrument in writing under their hands delivered to the referees, agree upon the shares and proportions to which they are respectively entitled; or when shares and proportions have been previously adjudged by the Court, such securities shall be taken in the names of, and payable to, the parties respectively entitled thereto; and shall be delivered to such parties upon their receipt therefor. Such agreement and receipt shall be returned and filed with the Clerk.
$ 303. Duties of the Clerk making investments.
The Clerk in whose name a security is taken, or by whom an investment is made, and his successors in office, shall receive the interest and principal as it becomes due, and apply and invest the same as the Court may direct; and shall file in his office all securities taken, and keep an account in a book provided and kept for that purpose, in the Clerk's office, free for inspection by all persons, of investments and moneys received by him thereon, and the disposition thereof.
$ 304. When unequal partition is ordered, compensation may be adjudged in certain cases.
munave that partition cannot be made equal between Sec. 894. When it appears that partition cannot be mate equal between the parties, according to their res
spective rights, without prejudice spective rights, without prejudice to the rights and in. terests of some of them, and a partition beursera, nec me of them, and a partition be Court may adjudge compensation to be made by equality; but such compensation sball
account of the inay adjudge compensation to be required to be made to others by owders uk to when account of the inequality of par
, appear that such infant has personal property suficient tot all not be required to be made to that purpose, and that his interest will be promoted thereby:e And bien sit causes the Court hall have power by infants, unless, in case of an
make compensatory adjustment the spective parties according to the ordinary principles fonal property sufficient for that i equity
purpose, and that his interest will be promoted thereby.
§ 305. The share of an infant may be paid to his guardian.
When the share of an infant is sold, the proceeds of the sale may be paid, by the referee making the sale, to his general guardian, or the special guardian appointed for him in the action, upon giving the security required by law, or directed by order of the Court.
§ 306. The guardian of an insane person may receive the proceeds of such party's interest.
The guardian who may be entitled to the custody and manage ment of the estate of an insane person, or other person adjudged incapable of conducting his own affairs, whose interest in real property shall have been sold, may receive, in behalf of such person, his share of the proceeds of such real property from the referees, on executing, with sufficient sureties, an undertaking approved by a Judge of the Court, or by a County Judge, that he will faithfully discharge the trust reposed in him, and will render a true and just account to the person entitled, or to his legal representative.
§ 307. A guardian may consent to partition without action, and execute releases.
The general guardian of an infant, and the guardian entitled to the custody and management of the estate of an insane person, or other person adjudged incapable of conducting his own affairs, who is interested in real estate held in joint tenancy, or in common, or in any other manner so as to authorize his being made a party to an action for the partition thereof, may consent to a partition without action, and agree upon the share to be set off to such infant, or other person entitled, and may execute a release in his behalf to the owners of the shares, of the parts to which they may be respectively entitled, upon an order of the Court.
$ 308. Costs of partition a lien upon the shares of the par
The costs of partition, including fees of referees and other disbursements, shall be paid by the parties respectively entitled to share in the lands divided, in proportion to their respective interests therein, and may be included and specified in the judgment. In that case, they shall be a lien on the several shares, and the judg. ment may be enforced by execution against such shares, and against other property held by the respective parties. When, however, a litigation arises between some of the parties only, the Court may require the expense of such litigation to be paid by the parties thereto, or any of them.
§ 309. The Court by consent may appoint a single referee.
The Court, with the consent of the parties, may appoint a single referee, instead of three referees, in the proceedings under the provisions of this chapter; and the single referee, when thus appointed, shall have all the powers and perform all the duties required of the three referees.
See Gray's New York Practice, Special Proceedings.
CHAPTER V.-Actions for the usurpation of an office or franchise.
Sec. 310. Action may be brought against any party usurping,
etc., any office or franchise. 311. Name of person entitled to office may be set forth in
the complaint; if fees have been received by the
usurper, he may be arrested. . 312. Judgment may determine the rights of both incum
bent and claimant. 313. When rendered in favor of applicant. 314. Damages may be recovered by successful applicant. 315. When several persons claim the same office, their rights
be determined by a single action. 316. If defendant found guilty, what judgment to be
rendered against him. § 310. Action may be brought against any party usurping, etc., any office or franchise.
An action may be brought by the Attorney General in the name of the people of this State, upon his own information, or upon the complaint of a private party, against any person who usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military, or any franchise within this State. And it shall be the duty of the Attorney General to bring the action whenever he has
reason to believe that any such office or franchise has been usurped, intruded into, or unlawfully held or exercised by any person, or when he is directed to do so by the Governor.
1. Generally. This writ is to prevent the usurpation of any office, franchise or liberty, as also to afford a remedy against corporations for a violation of their charters, tending to a forfeiture thereof. Ex parte the Attorney General, i Cal. 87.
2. The Code provides a remedy against any person who usurps, intrudes into, or unlawfully holds or receives any public office, civil or military, or any franchise in the State. People v. Olds, 3 Cal. 175.
3. The distinction between writs of mandate and quo vartanto, as held in Eng. land, is not abolished by the statutes of this State, but is fully recoguized. Id. 177.
4. An information in the nature of a quo warranto is the proper proceeding to try the title to an office. People v. Scannell, 7 Cal. 439.
5. Quo warranto lies to test the right of an appointee of the Board of Pilot Commissioners. Palmer v. Woodbury, 14 Cal. 43.
6. A person holding a certificate of election without the right and legal title to the office, is an intruder within the meaning of the act. People ex IV m. Iilkts v. Jones, 20 Cal.
7. The real right or title to the office comes from the will of the voters as expressed at the election. If the office was in fact given by the voters to another, the possession by the defendant of the certificate affords him, at most, but a color of title, and does not invest him with the right which belongs to another. Id.
8. A certificate of election is not necessary to enable a party, claiming to have been elected, to bring his action by quo warranto. Magee v. Supervisors of Calaveras County, 10 Cal. 376.
9. Such certificate is only prima facie evidence of title to the office, not conclusive. Nor is it the only evidence by which the title may be established. It is the fact of election which gives title to the office, and this fact may be established, not only without, but against the evidence of the certificate. Magee v. Supervisors of Calaveras Co., 10 Cal. 376.
10. Who has jurisdiction to grant the writ. – On petition of the Attorney General for a writ of quo warranto against a Tax Collector: Held, that the Court had no jurisdiction, and the prayer of the petition was denied. The Attorney General ex parte, 1 Cal. 85.
11. This Court is strictly an appellate tribunal, and has no original jurisdiction except in cases of habeas corpus, and consequently is not empowered to issue a writ of quo warranto for the purpose of inquiring by what authority a person exercises the duties of a collector of the foreign license tax. Id.
12. The act giving jurisdiction over the subject of contested elections to the Judge of the County Court, is constitutional, and District Judges are embraced within it. Saunders v. Haynes, 13 Cal. 145.
13. This is one of the "special cases,” of which the Constitution provides that the County Judge may take cognizance when authorized by the Legislature. Id.
14. Judicial officers.—The Sheriff is not a judicial officer. And though the offices of Sheriff and Tax Collector are distinct by the Constitution, yet they may be united in the same hands. Attorney General v. Squires, 14 Cal. 12.
15. It seems the office of Sheriff and Tax Collector are constitutional offices. ld.
16. Who are eligible to office.-On the sixteenth day of August, 1857, A received from the President of the United States a commission of Surveyor General for the State of California. At a general election held on the third day of September, 1857, A and B were candidates for the office of State Controller of the State of California ; A received the highest number of votes, but never qualified or claimed the office. On the sixth day of September, 1857, A gave bond and took the oath of office under the commission as Surveyor General, and on the ninth day of the same month entered upon the duties of such office, and on the fifteenth 'notified the President of his acceptance of the same: Held, that A was eligible to the State office when the votes were cast for him, and was duly elected thereto. The People ex rel. Meloney v. Whitman, 10 Cal. 38.