Tracy v. Craig

Sharpstein, J.: This is an action to have the sale of a portion of the estate of Thomas Baker, deceased, set aside upon the same grounds as were alleged in Tracy v. Colby, 55 Cal. 67, for setting aside the sale of - another portion of that estate. The plaintiffs in both cases are the same, and Colby, the County Judge and ex-ojficio Probate Judge of Kern County, is a defendant in each case. In this case it is alleged in the complaint, that defendants Craig and Jewett bid off the premises at the administratrix’s sale, (which the plaintiffs seek to avoid) for themselves, Colby and Sin daily jointly. After the sale, confirmation, and conveyance to defendants Craig and Jewett, they conveyed to each of the other defendants an interest in the land so purchased at said sale. Whether or not, as between defendant Colby and the other defendants, or any of them, there was any agreement or understanding, prior to the confirmation of the sale to Craig and Jewett, that Colby should have an interest in the land so purchased at the administratrix’s sale, is the real point in controversy. The plaintiffs allege, in substance, that at some time before the administratrix’s sale took place, the defendants had arranged among themselves that the real property described in the complaint should be purchased at the administratrix’s sale by some one or more of their number, and thereafter held and disposed of for the common benefit of all of them. The defendants, Craig, Colby, and Sinclair, answer jointly, and deny that Colby had any interest, or that there was any agreement or understanding between him and the other defendants, or any of them, that he should have any interest in the land bought at said administratrix’s sale, until after the confirmation of said sale.

The defendant Jewett filed a separate answer., in which he denies “ that he fraudulently conspired and contrived, with his codefendants herein, or with any of them, for the purpose of defrauding,” etc., and denies that he “ made fraudulent or any arrangements, as alleged in the complaint, or any fraudulent, or any arrangements whatsoever, in fraud of the rights of said estate,” and much more to the same effect.

The vice of his answer is that he nowhere unqualifiedly de[93]nies that there was any agreement or understanding between the other defendants and Colby, prior to the confirmation of the sale, that he should have an interest in the land purchased at said sale. But his answer was not demurred to, nor was there any motion for judgment upon the pleadings as to him. On the other hand, the case was tried as if he, like the other defendants, had sufficiently denied that allegation of the complaint. The findings and judgment of the Court were in favor of the defendants generally. But it was error for the Court to find in favor of defendant Jewett upon an allegation of the complaint which he did not deny. Jewett was called as a witness on behalf of plaintiffs, and gave some testimony tending to prove that he and the other defendants had been jointly interested in land purchased at a foreclosure sale, and also in land purchased at an administratrix’s sale of the Baker estate. As the two transactions seemed to be connected, we think that plaintiffs were entitled to have answers to the following questions, to which objections were made by defendants, and sustained by the court, viz.: