Tracy v. Colby

California Supreme Court Jul 1, 1880 No. No. 6,702Published

Before: Sharpstein

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Holding. The court held that evidence of a defendant's declarations regarding a secret interest in a judicial sale is admissible against them, and that a probate judge is prohibited from having an interest in property sold under their own court's order.

Issues

Whether declarations of a defendant regarding a joint interest in a purchase are admissible without proving the other defendant's presence.
Whether a probate judge is disqualified from having an interest in property sold under their own judicial order.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The rule “admitting the declarations of a party to the record in evidence applies to all cases where the party has any interest in the suit, whether others are joint parties on the same side with him or not.””

Synopsis

Trustee — Fiduciary — Administrator’s Sale — Constructive Fraud. — A judge, wlio orders a sale, and has the power to confirm or set it aside, comes within the reason of the rule that trustees, strictly so called, and other fiduciaries, cannot make a valid purchase of any part of the estate, in respect to which they have duties to perform. .

Id.—Id.—Id.—Id.—Evidence—Declarations.— H. purchased land at an administrator’s sale, and, on the day he received his deed, conveyed an undivided half of the land to G., the Probate Judge, who ordered and confirmed the sale, the latter paying therefor one-lialf of the purchase-money paid by II. In an action brought by the heirs of the intestate against H. and C.— the complaint alleging that the sale to C. was made in pursuance of an agreement, or understanding, between him and II., entered into prior to the administrator’s sale—held, that the declarations of H., made prior t.o the sale, but in the absence of C., that he was about to purchase for the benefit of himself and 0., were admissible in evidence.

Id.—Id.—Id.—Id.—Finding.—In the case stated the Court found that H. conveyed to C. upon a contract and agreement, made on the day of the sale, and not in pursuance of any fraudulent contract made prior thereto. Held, that the finding is defective, as it does not negative the allegation that there was such a prior contract, but simply expresses the opinion of the Court that it was not fraudulent.

Sharpstein, J.: This is an action brought by F. A. Tracy, guardian ad litem of the minor heirs of Thomas Baker, deceased, and the widow of said Thomas Baker, to obtain a decree setting aside certain conveyances made by the administratrix of the estate of Thomas Baker, deceased, to defendant Hewlett, on the ground that the purchase made by said defendant Hewlett was made [69]in part in the interest of defendant Colby, the then County Judge and ex-qfficio Probate Judge of Kern County.

The facts, about which there is no controversy in this case, are: that Thomas Baker died intestate; that his widow was duly appointed administratrix of his estate; that pursuant to an order of the Probate Court, of which defendant Colby was Judge, she sold at public auction, on the 2nd of December, 1874, the land described in the complaint and belonging to the estate, to the defendant Howlett; that on the 20th day of December, 1874, said sale was confirmed by said Probate Court, said defendant Colby still being Judge thereof; that on the 4th day of January, 1875, said administratrix signed, scaled, and acknowledged a conveyance of said land, but did not deliver the same to said defendant Hewlett until the 28th day of Januaiy, 1875 ; that on the same day that said deed ivas delivered by said administratrix to said defendant Hewlett, he executed and delivered to said defendant Colby, who was still Judge of said Probate Court, a deed of an undivided one-half of said land, for which he paid to said defendant Howlett one-half of the sum which the latter had paid for the whole of said land.

It is alleged in the complaint, and denied in the answer, that said last-mentioned conveyance was made pursuant to some agreement, or understanding, between said defendants, entered into prior to the sale of said land by said administratrix. Upon this issue the finding of the Court is in favor of the defendants.

On the trial the plaintiffs called as a witness one Julius Chester, who testified that he was acquainted with the defendants, and that on the day of the sale of said land by said administratrix he had a conversation with the defendant Howlett in regard to his purchase of said laud. The plaintiffs’ counsel then asked the witness some questions, so framed as to elicit from him what defendant Howlett at that time said about any one being interested with him in his said purchase. These questions were objected to, on the ground that no proper predicate had been laid, “ in this, that the allegations in the complaint are a conspiracy between the defendants, and it has not been shown that the defendants were both present at the conversation offered to be introduced.” The objection was sustained, and plaintiffs excepted. Thereupon plaintiffs offered “ to prove by

Tracy v. Colby

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