First Federal Trust Co. v. Stewart

TYLER, P. J.

is an appeal from an order confirming the sale of certain real property in the above-entitled estate.

The facts are substantially without conflict. It appears therefrom that the First Federal Trust Company, executor of the will of Jeremiah Lynch, advertised a sale of certain real property under the provisions of section 1549 of the Code of Civil Procedure. The notice stated that the executor would sell at private sale on or after Monday, the ninth day of October, 1922, at 10 o’clock A. M. of said day, to the highest bidder therefor, upon the terms and conditions mentioned. One of the terms provided that all bids or offers should be in writing. In response to this notice four bids were received by the executor, and subsequently at the time stated in the notice the representatives of such bidders were present in the office of the executor when the bids were opened. The executor announced that the highest bid received was $131,550, and then asked if there was anyone who wished to raise the amount. Thereupon one of the bidders made an oral offer in a higher sum. Other bids followed, the appellant herein raising his own offer twice, until finally one Louis Levin made a bid of $136,000, which was the highest one received, and upon being reduced to writing it was accepted by the executor, and ten per cent of the purchase price was thereupon paid. Appellant’s original bid made in response to the notice of sale was the highest sealed one received, it being $131,550. No objection, however, was made by him to the action of the executor in calling for or receiving higher bids. On the contrary, as heretofore stated, when such bids were asked for he voluntarily and without objection entered into the competitive bidding. Thereafter the executor filed a return in the superior court of the sale to Louis Levin at the price of $136,000. At the hearing and for the first time appellant objected to the confirmation of the sale on the ground that it was not legally made or fairly conducted, for the reason that the executor, ■ instead

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of accepting the highest written bid offered, proceeded to open the bidding to all present in the manner of a sale at public auction.

In his objections to the confirmation of the sale appellant prayed that the court order and direct the executor to confirm his bid and offer, or in its discretion order a new sale to be made. The court overruled the objection, and confirmed the sale to Mr. Levin at $136,000. The appraised value of the property in June, 1922, was $130,000. Appellant here seeks a reversal of the order of confirmation, claiming that an agreement of sale was created between him and the executor upon the return of his sealed bid, and that the sale to Levin was void for the reason that it was accepted pursuant to a sale at public auction rather than at private sale as advertised.