Nickels & Brown Bros. v. Buhman Bros.
Before: Cooper
Synopsis
Estates of Deceased Persons—Sale of Property by Executors—Power in Will—Memorandum of Sale—Statute of Frauds.—Where a sale of real estate and personal property of a deceased testator is made under a power in the will, the purchaser deals with the executor as he would with any other vendor, except that the court must confirm the sale; and a memorandum of sale by the executor is sufficient under the statute of frauds if it contains the names of the parties and a sufficient description of the property for identification, and the price and terms of purchase, and states that the sale is made subject to confirmation by the superior court.
Id.—Untenable Objection to Sale.—Where the evidence shows without conflict that the amount of twenty thousand dollars bid at the sale was a fair price for the property sold, which consisted of real property appraised at sixteen thousand dollars, and personal property appraised at less than three hundred dollars, and that a sum ten percent in excess of the amount bid could not probably be obtained on a resale, the appellant corporation, which after such sale made an offer not binding to pay six hundred dollars more for the property, lbut refused to offer ten per cent in advance of the bid, and which was not a legatee, is not in a position to object that the sale en ■masse was voidable because of such increased offer, and because the amount bid was not sufficient to pay the legacies in full.
Id.—Confirmation of Sale—Duty of Court.—Where at the time of the written memorandum of sale no binding offer to increase the amount bid had been made, it was the duty of the court to confirm the sale unless the price bid was disproportionate to the value of the property, and it is made to appear that an increased bid of ten per cent may be obtained.
Id.—Appeal from Order of Confirmation—Return of Sale not in Record—Objections not Appearing—Presumptions.—Upon appeal from an order of confirmation, it is the duty of the appellant to make the return of sale, which was used upon the hearing, a part of the record; and where such return does not appear, and it does not appear that appellant filed any objections to the return, all presumptions are against error in the order appealed from, and it must be affirmed. It may be that the return showed that the appellant had withdrawn its bid and consented to the order appealed from.
COOPER, C.
This is an appeal by Nickels & Brown Bros., a corporation, from an order confirming a sale of real and personal property to Buhman Bros., and comes here on a bill of exceptions. It is claimed by respondent that as the court made an order refusing to confirm a sale of the same property to appellant, and the time for appealing from said order has expired, therefore appellant is not a party aggrieved in this case, and cannot appeal, and that its appeal should be dismissed. It is not necessary to decide this question, as we have concluded that the order should be affirmed. The facts as shown by the record are substantially as follows: Deceased left a will, of which the respondents Kyser and Hottel were duly appointed executors. This will authorizes the executors to sell at public or private sale, with or without notice, any or all property of the estate, without an order of court authorizing the same. A few days prior to October 15, 1902, the executors made a parol agreement to sell the property to Buhman Bros, for twenty thousand dollars. After the oral agreement had been made and five hundred dollars deposited, the attorney for appellant informed the executors that appellant would give twenty thousand five hundred dollars for the property, and was ready to make a deposit in the amount required. The executors telephoned to their attorney, and were informed that Buhman Bros, had been in their office and left a deposit of five hundred dollars on the sale to them. They then refused to accept a deposit from appellant. On October 15, 1902, the executors, acting under the power of sale in the will, and carrying out the oral agreement, sold the property known as the “Robinson Ranch,’’ together with the personal
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property thereon, to Buhman Bros., for the sum of twenty thousand dollars, the sum of five hundred dollars having been •paid down when the oral agreement was made. A memorandum of sale was made as follows:—
“Napa, Cal., October 15th, 1902.
“Received from J. J. Buhman, Jr., C. J. Buhman, J. S. Buhman and E. J. Buhman, the sum of five hundred dollars as a deposit on the purchase price of $20,000 for what is commonly known as the ‘Robinson Ranch’ .in Browns Valley, Napa County, together with the personal property situate thereon, belonging to the estate of Charles Robinson, deceased. Said sale is made subject to the confirmation of the superior court of Napa County. In case said sale be confirmed the balance of the purchase price, $19,500 to be paid on delivery of deed. In case said sale be not confirmed, the said sum of $500 to be returned to the said Buhman. „ Tr.
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