Schlicker v. Hemenway

Temple, J. This is an appeal taken from a judgment rendered because defendants declined to answer after their demurrer was overruled.

The action is brought against defendant individually, and as executor of the estate of Greenbury Hinkston, deceased, to recover seven hundred and fifty dollars, received by Hemenway under the following circumstances, as set out in the complaint:

An order of sale was made in the estate, authorizing and directing the executor to sell certain real estate at-public auction. The executor negotiated a private sale to plaintiff, and reported it to the court as a private sale. In the probate court, when the matter of the confirmation came up, plaintiff increased his bid from six [581]thousand dollars to six thousand eight hundred dollars. The sale was then confirmed to him. At the time of making the bid he put up, as required, seven hundred -and fifty dollars. Plaintiff refused to complete his purchase, and, therefore, the order of confirmation was vacated, and the property resold. The complaint does not show whether it brought more or less than the offer of plaintiff. Plaintiff demanded the return to him of the seven hundred and fifty dollars, and, as the defendant declined, he brought this action.

The complaint was demurred to on various grounds, and, among others, on the ground that there is a misjoinder of parties defendant, in that Hemenway, as an individual, is joined with the representative of the estate of Hinkston, when the complaint not only fails to show a joint or joint and several liability, but shows that both cannot be liable. Also, that there is a misjoinder of causes of action, with specifications very nearly as above. Also, that the complaint is ambiguous, because it cannuu be ascertained therefrom whether it is sought to charge Hemenway or the estate. Also, uncertain for the same reason.

The demurrer should have been sustained on all these grounds. The complaint is also specially demurred to on the ground that it does not state a cause of notion against Hemenway, and, separately, that it does not state a cause of action against the representative of the estate. The cause of action is based, generally, upon the proposition that because the return of the sale made by the executor shows that the land was sold at private sale, and not at public sale as directed in the order of sale, the court had no jurisdiction to confirm it, or, at least, that the sale was void on the face of the record. I think this must be conceded.