Verdier v. Verdier

WOOD (Fred B.), J.

The principal question upon this appeal turns upon the interpretation properly to be made of a certain provision of the interlocutory decree in this partition suit, a decree which ordered the sale of real property and appointed a referee to conduct the sale.

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The decree as typed and presented to the trial judge directed the referee to sell “at public auction, to the highest and best bidder for cash, lawful money of the United States, such sale to be in the same manner as in sales of real property on execution, and upon and after notice not less than that required by law for sales of real property on execution . . .” The judge by pen struck out the words “at public auction” and inserted in lieu thereof the words “at private sale,” leaving physically intact the remainder of the clause above quoted.

[192]

Defendant interprets this clause literally, as directing a “private sale” to, be conducted in the manner of a sale (at public auction) of real property on execution. Such a direction, defendant says, is an anomaly, legally ineffective and void because the applicable statute requires a “private sale” of real property in a partition suit to be “conducted in the manner required in private sales of real property of estates of deceased persons” (Code Civ. Proc., § 775).

If defendant’s interpretation of the decree were correct there would be merit in her conclusion, but hers is not the correct interpretation.

When the trial judge substituted the words “private sale” for “public auction” he clearly evinced an intent to order a private sale, as was within his discretion to do under section 775 of the code.

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We assume that he intended a legally effective sale (a private sale in the manner required therefor by section 775) and that his failure to strike out the words directing a sale in the manner of sales on execution was inadvertent. It was not necessary for him to prescribe the manner of sale, when ordering a private sale, for the statute prescribes the manner. Nor could he effectively prescribe a different manner. Accordingly, in effectuation of the trial judge’s clearly manifested intent, we should ignore those words (“in the manner of sales on execution,” etc.) just as if they had been physically deleted from the decree. Changes made in an official writing, when the record shows the changes, are appropriate aids to its interpretation.