67 P. 107 | Or. | 1901
delivered the opinion.
This is a proceeding, originally commenced .in the county court of Klamath County, to remove an administrator. The petition of N. B. Knight therefor states, in effect, that the estate of W. H. Mills, deceased, is indebted to him in the sum of $1,329, with interest from March 12, 1892, as appears from the orders and decrees of said court of March 11, 1892, January 8, 1895, and July 12, 1895, no part of which has been paid; that since September —, 1894, J. W. Hamakar has been and now is the duly appointed, qualified, and acting administrator de bonis non'oí said estate; that in pursuance of an order of said court, Hamakar on May 4, 1895, sold to L. T. Garnsey certain real property belonging to said estate for the sum of $3,440, and two days thereafter filed a report showing that said sale had been made for cash; that, relying thereon, said court confirmed the sale, and ordered a conveyance of the property to the purchaser, in pursuance of which Hamakar executed and delivered a deed thereof to Garnsey; that the report of said sale was false and fraudulent, and that the purchaser had not then nor has he since paid for the land so purchased; that Hamakar, in the presence of certain persons, stated that Garnsey had not paid him the amount of his bid; that the administrator has violated his trust, and is wasting the estate, to the probable loss of the petitioner, who prays that he may be removed and required to pay into court the money so due from Garnsey to said estate. A demurrer to the petition, on the ground that it did not state facts sufficient to constitute a cause of suit, or to entitle the petitioner to the relief demanded, having been overruled, an answer was filed denying the material averments of the petition, and alleging, in substance, that Hamakar, on October 8, 1895, accounted for
The rule is well settled that a county court, in determining the sufficiency of a petition for the removal of an administrator, should take judicial notice of its records and prior proceedings in the administration of the estate: In re Bennett (D. C.) 84 Fed. 324; Pittel v. Fidelity Mut. Life Assoc. 86 Fed. 255 (30 C. C. A. 21); State v. Bowen, 16 Kan. 475; Robinson v. Brown, 82 Ill. 279; State v. Postlewait, 14 Iowa, 446. In White v. Spaulding, 50 Mich. 22 (14 N. W. 684), a case upon which appellant’s counsel rely, it was held that a petition for the removal of an administrator is insufficient if it is not presented by persons interested, or does not allege sufficient cause. Mr. Justice Cooley, speaking for the court in respect to two applicants for an order removing an' administrator, says:
Considering the case upon the merits, the transcript shows that Fred H. Mills, the former administrator, not having sold any of the real property of said estate under the authority delegated March 11, 1892, the county court, January 8, 1895, in pursuance of Hamakar’s petition therefor, ordered him to sell said property at public auction for cash, payable in lawful money of the United States upon the confirmation of the sale. Hamakar’s report was filed on May 4, 1895, and shows that on that day, in pursuance of the order of said court, he sold at public auction certain real property of said estate to Garnsey for the sum of $3,440, upon the terms prescribed, receiving therefor, at the time of sale, 20 per cent, of the purchase price, the remainder to be paid upon the confirmation of the sale. No objection to said report having been made, the court, on May 7,1895, ordered the sale confirmed, and directed Hamakar to execute and deliver a deed conveying said real property to the purchaser upon his payment of the full purchase price. It is alleged in the petition,' and not denied in the answer, that Hamakar on June 18, 1895, executed and delivered to Garnsey a deed to said real property, which deed is recorded in book No. 9, records of deeds of said county, at page 393, et seq. The answer admits, “that said L. T. Garnsey had not, at the time of reporting said sale, paid the full amount of his said bid, but denies that any part of said bid remained unpaid at the date of the commencement of this proceeding,” which was begun March 25, 1896, by filing the petition. When it is remembered that 20 per cent, of the purchase price was paid at the time of the sale, and that the deed was delivered June 18, 1895, at which time the remainder was payable, the denial that any part of said bid remained unpaid March 25,