Sloss v. De Toro

Belcher, C. C. The plaintiff commenced this action in the superior court of San Diego County, and the defendants moved to have the case transferred to the superior court of Los Angeles County for trial. The motion was denied, and the appeal is from, that order.

' The allegations of the complaint are substantially as follows: Augustin Olvera died testate, seised of an undivided interest in a tract of land situate in San Diego County. The tract was afterward partitioned, and a portion thereof, described as lot 70 and containing 9,238 acres, was allotted to the estate in severalty. The plaintiff was the owner of an undivided interest in lot 70, equal to 488.25 acres, the title to which he acquired by-conveyance from the widow of the deceased. In July, 1881, the defendant, Juan de Toro, was appointed administrator of the estate by the superior court of Los Angeles County, and received letters of administration which had not been revoked. In September, 1886, De Toro obtained an order from that court authorizing him, as administrator, to sell an undivided part of lot 70, and in March, 1887, in pursuance of that order, he sold to defendant Forbes at private sale, for $5.05 per acre, all the right, title, and interest of the estate in and to a described portion of the lot, containing 4,500 acres; and in April following the sale was approved by the court.

The sale was fraudulent. Forbes was the brother-in-law of De Toro, and his business manager and adviser. Prior to the sale the two connived together, and without the knowledge or consent of plaintiff, or the heirs to the estate, or their successors in interest, secretly agreed that the administrator should sell the described land to Forbes for the nominal sum of $5.05 per acre, and that the latter should thereafter resell the land at its market value, which was rapidly increasing, and was then worth not less than $25 per acre, and that the administrator should have a share of the proceeds of such sale. Within [131]a few days after the sale to him, Forbes again, sold the land to other parties for $25 per acre.

There was no necessity for a sale of the land. The administrator had in his hands personal property sufficient to pay all outstanding indebtedness and all expenses of administration which had then accrued, and there was no family allowance to be provided for. Moreover, the court never acquired jurisdiction to make the order, for the reason that none of the conditions required by law to authorize such a sale existed, and the petition, therefore, was wholly insufficient.