Halleck v. Guy

California Supreme Court Jul 1, 1858Published

Before: Burnett, Terry

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Holding. The court held that probate sales of real estate are judicial sales, not subject to the Statute of Frauds, and that the rule of caveat emptor applies to such sales. However, the court found the lower court erred in its calculation of the decree regarding interest and payment terms.

Issues

Whether sales of real estate by executors under the probate system are judicial or ministerial acts.
Whether the Statute of Frauds applies to probate sales of real estate.
Whether the rule of caveat emptor applies to probate sales.
Whether the decree correctly calculated the credit of the purchase price against the defendant's mortgage.

Disposition. remanded

Quotations verified verbatim against the opinion

“The order for the sale, and the order of confirmation, are both judicial acts; and these two concurring, make the sale a judicial sale, and, therefore, not within the Statute of Frauds.”

“In these sales, caveat emptor is the rule.”

Synopsis

A sale of property, under an order of the Probate Court, is a judicial act, and therefore not within the Statute of Frauds.

A substitution of one bidder for another, at executor’s sale, who fails to comply with the terms of sale, cannot effect the validity of the sale. The order directing the sale and the order confirming it, give vitality to the purchase.

A purchaser at executor’s sale, under an order of the Prohate Court, cannot refuse to pay the purchase-money on the ground that the notice of sale stated a good title, and that the title was not good. The sale was stated in the notice as a probate sale, the bidder knew its character, the effect of the deed, and is bound to examine the title for himself. In these sales, caveat enptor is the rule.

Where the terms of the sale were, one-half of the purchase-money cash, and the remainder in ninety days, with interest from date of sale, at the rate of one per cent, per month, and the purchaser elected to pay the whole amount down; Held, that the purchaser is entitled to a reduction for the interest on one-half of the purchase-money.

Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring. This was a bill to compel the defendant to pay the sum bid by him for certain lots sold by plaintiffs, as executors of Joseph L. Folsom, deceased, under an order of the Probate Court. The Court below rendered a decree for the plaintiffs, and the defendant appealed.

The first point made by the defendant is that the sale was not binding because there was no subscribing of the contract by the plaintiffs or their agent. The fate of this objection depends upon the question whether sales by executors and administrators, under our probate system, are judicial or ministerial. If judicial, the contract need not bo in writing, subscribed by the parties. The Statute of Frauds does not apply to such a case, the sale being made by the Court.

The administrator, or executor, is under the control of the Probate Court. In the sale of property he is the moving party-in behalf of creditors, but acts subject to the orders of the Court.

The order of the Probate Court directing the sale of the real estate of the deceased, is a judicial act. It is, in substance, similar to a decree in chancery for the sale of specific property. The order of the Probate Court may not, in specific terms, describe the exact property to be sold; but it still has reference to the property already described upon its records, and is therefore, in effect, the same as a decree in chancery. The administrator, or executor, in making the sale, does the particular act which the order of the Court itself directs him to perform. The Court determines that specific property must be sold, and, by its order, directs the administrator to sell the same according to law. The mode of. the sale is pointed out by express statute. When sold, the report of the sale is made by the administrator to the Court, and unless confirmed by order of the Court there is no binding sale, and no title can pass to the purchaser. To be valid, the sale must first be ordered by the Court, and afterwards confirmed by it. The order for the sale, and the order of confirmation, are both judicial acts; and these two concurring, make the sale a judicial sale, and, therefore, not within the Statute of Frauds. In making the sale itself, the administrator acts for the Court and under its orders. He receives the bids and returns them like a Master in Chancery, into the Court for its consideration. The Probate Court is the guardian of tlnyright-s of all parties interested in the estate, and acts for all. • /

But, in a judgment at law, there is no direction byjfie Court itself that any specific property shall be sold. /Judgment is [196]

Halleck v. Guy

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