Verwoert v. Jenkins

SHAW, J.

Alfreda Verwoert, as guardian of the estate of Herman C. Verwoert, obtained an order directing the sale by her, as such guardian, of certain real estate belonging to the wai’d. The order directed that the sale be made at private sale, one-half cash, the balance on a credit not to exceed three years, with interest. The petition did not ask that the sale be at private sale, but was silent on that point. The guardian made a sale to W. 0. Jenkins, appellant herein. A return of said sale was duly made and the court made an order confirming the same. Thereupon Jenkins gave notice to the guardian that there were certain defects in the title to the land, and in the proceedings for the sale, and that as soon as such defects were removed he would complete the first payment and comply with the terms of the order of sale. The alleged defect in the title consisted of the fact that there

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was an outstanding deed of trust conveying the property to trustees to secure the sum of twenty-one thousand dollars owing to the Sacramento Bank. The defect alleged to exist in the proceedings was that the petition for the sale did not ask that the sale be made at private sale. Thereupon the guardian moved the court to vacate the order confirming the sale, upon the ground that the purchaser had refused to complete the same unless the alleged defect in the proceedings was removed, and the encumbrance arising from said deed of trust satisfied. The appellant appeared and resisted the motion. After hearing the evidence, the court granted the motion, and thereupon made an order vacating the order confirming the sale, and also the order directing the guardian to make the sale. From this order the said Jenkins prosecutes this appeal. The objection made by Jenkins to the validity of the sale is untenable, and his objection to the title of the ward in the land sold to him was not sufficient cause for his refusal to go on with his purchase.

The claim that such a sale is invalid if made at private sale, where the petition therefor did not ask for a sale at private sale, is not supported by the statute. Section 1787 of the Code of Civil Procedure provides that upon the petition of a guardian for a sale of property the court “may, if the same has been prayed for in the petition, order such sale to be made either at public or private sale.” Section 1789 provides that the provisions of the chapters of the code relating to sales of property by administrators, shall apply to proceedings for such sales by guardians, unless otherwise specially provided in the chapter relating to guardians’ sales. Section 1544 of the chapter relating to sales by administrators provides that “every such sale must be ordered to be made at public auction, unless, in the opinion of the court, it would benefit the estate to sell the whole or some part of such real estate at private sale; the court may, if the same is asked for in the petition, order or direct such real estate or any part thereof to be sold at either public or private sale, as the executor or administrator shall judge to be most beneficial for the estate.” The effect of these provisions is not, as the appellant contends, to require the petition to pray for a private sale in order to give the court authority, to order such private sale. The code provides for two contingencies relating to private sales. The semi