Halleck v. Moss

17 Cal. 339 | Cal. | 1861

Cope, J. delivered the opinion of the Court

Field, C. J. concurring.

This is an action upon a written agreement executed by the defendant Moss. The plaintiffs are the executors of the estate of J. L. Folsom, deceased, and the action is brought by them in that capacity. In order to recover, it was necessary for them to show that the property mentioned in the agreement had been sold in the course of administration. There was a fatal defect of proof in relation to the notice under which the sale was made. The notice had been given by publication in a newspaper ; but it was not shown that it had been so given under the authority of any order directing it to be done. The statute provides that the notice in such

cases “ shall be given by notices posted in three public places in the county, or by publication in a newspaper if the Judge shall so order.” (Wood’s Dig. 406, sec. 153.) There was no attempt to show that any notices had ever been posted, and in the absence of an order directing the publication, there was no other mode in which the notice could be given. The evidence on this point was therefore insufficient; and if the proper notice was not in fact given, the sale was invalid. The agreement must be understood as referring to a valid sale ; and a sale upon insufficient notice is at least voidable, if not absolutely void. (Haynes v. Weeks, 10 Cal. 119.) The provision in the agreement requiring the sale to be made upon reasonable notice, cannot be considered as dispensing with any of the requisites of a legal sale. The sale was to be made in the course of administration, and whatever is essential to the validity of such a sale in any other case was necessary in this.

Judgment reversed, and cause remanded for a new trial.