Kertchem v. George

Foote, C. This is an action to enforce the specific performance of a contract by which, as alleged, the de.fendant became liable to pay the purchase price bid by Eim at an administrator’s sale of the land of a decedent.

The answer filed by the defendant alleged, among other things, that the order for the sale of the land “was made upon a defective petition, a copy of which petition is hereto attached and made part of this answer, marked ‘ Exhibit A,’ which did not set forth the amount of personal estate that had come to the hands of the administrator, nor contain a general description of all the real property of which the decedent -died seised, or in which the estate has acquired any interest, nor the condition or value of any such property, nor any other facts showing the sale to be necessary, nor were such defects ■supplied by proofs at the hearing, nor were the general 'facts showing such necessity stated in the said order of sale or decree, a copy of which said decree is hereto ati ■tached and made part of this answer, marked “Exhibit B,” nor was there any other decree or order for such sale, or any other foundation therefor than said defective petition.”

• • A demurrer to the answer as- to that paragraph, aé being insufficient in its statement of facts and denials of [599]those of the complaint, to constitute a defense in whole or part to the action, was sustained. Certain other allegations of the answer were stricken out, and upon the remaining issues made by the pleadings the plaintiff had judgment, from which this appeal is taken.

The important question in the case is as to whether the sale of the land was absolutely void, and could not give to the defendant even the title which the decedent may have had to the land. If the sale was absolutely void, and the defendant could get nothing whatever for his money, it does not seem as though the contract attempted to be enforced is so fair and just that a court of equity would force him, without any consideration whatever, to pay over the price for which he endeavored to buy the decedent’s interest in the land, and through no fault on his, the defendant’s, part failed to obtain it. (Agard v. Valencia, 39 Cal. 302; Bruck v. Tucker, 42 Cal. 353.)

An examination of the petition for the sale, and schedule D, to which it refers, shows a description of the land sought to be sold, and discloses the fact that the only recital upon the subject of the condition and value of the land is that it was an " unperfected claim under the homestead laws of Congress to southwest quarter of southwest quarter of east half, and lot' 4 of southwest quarter of section 30, township 16 north, range 5 east, in Long Bar township, Yuba County, California.”