*1 F. Nо. 17984. Bank. Dec. [S. 1949.] Administratrix, etc., MAINS, Respondent, E. MARY (a TITLE Corpora- CITY INSURANCE COMPANY tion) , Appellant. *2 &
Tobin Tobin and Richard Raoul-Duval Appellant. Becsey Joseph Roland B. for Respondent. Bates EDMONDS, property owned the estate Certain real J. Mary was sold her E. is administratrix Mains Probate procedure specified in accordance with the holder City Company, аs the escrow Title Code. Insurance part of paid, through purchase price which the used satisfy a deed of trust specific without judgment adverse to the appeal record. The from the questions legal char company presents for decision the liability paying holder’s acter of the sale and the escrow the debt. real cеrtain death, decedent owned the time of his At upon which a note to secure
property to a trust deed section 780 owing. Pursuant $3,800 was about notice that published Code, administratrix Probate The terms for cash. private be property would sold follows: “Purchaser stated as of sale were and conditions purchased property paymеnt and take assume the County and whatsoever taxes him, subject to all the State now or are nature which name or of whatsoever assessments pur- against charged as a lien hereafter *3 ’’ by him. chased accepted was Derkatch $11,450 made one The bid of deed the party mentioned Neither by the administratrix. express any nor was them not discussеd trust; it was of any as to encumbrance. made representation probate was confirmed the court and The sale thereafter deposited company with the title a to deed the administratrix “Receipt Papers,” In she received a for property. the return upon receipt deed was to be delivered provided that the whiсh deposit $1,145, a of credit for less incidental $11,450 with of receipt opposite printed space on the the head- charges. The trust” was left blank. mortgage—deed of ing, “pay company paid prin- escrow, the title the closing the Before owing on the trust deed note and tendered cipal and interest unquestioned expenses, amounts of remainder, less the accept tender and the to the She refused administratrix. trial court determined that followed. The present action appeal $10,300 and the approximately to she is entitled in her favor. from the buyer probate at a sale that the company contends title The pur- 780, seq., of the Probate Code 754, et under sectiоns any It encumbrances. and clear of free chases the pay off the exist- implied had that it argues also legally was bound administratrix since the of trust ing deed convey ground an As title. an additional unencumbered appellant the that judgment, reversal the asserts money the administratrix cannot maintain action recovery equitable principles bar and received because legally obligated pay. the amount of a debt which she was the support judgment, In administratrix takes position acquires purchaser probate that at a such convey, right, as the has to such title and interest estate declares equities, to all liens and encumbrances. She agent, having col- company special that title was her behalf, whole purchase price lected on it is liable for the her pay. amount, charges specifically less the authorized to was company, in charges connection, this she a paying trust, was obligation off the under the deed mere the sum disbursed. volunteer and cannot offset so judicial
Under
“.
. . the doctrine оf caveat
emptor requires
purchaser
to avail
himself
all the means
information
hand
ascertain the quality of the property
and the character and extent of the title and the deed of an
quitclaim.”
administrator is
the nature of mere
(Estate
Backesto,
Cal.App.
265,
597],
P.
citing Miller
Gray,
& Lux v.
;
Cal.
see Hammond v.
Cailleaud, 111
On the other
this
apply
rule does not
to a sale оf
land
generally.
between
vendors
vendees
“Prom the use of
‘grant’
any
conveyance by
word
which an estate of
...
inheritance
is to be passed,
following
.
covenants .
implied,
are
express
unless restrained
terms contained
conveyance:
in such
...
2.
such
That
estate is at
time
conveyance
the execution of such
free from encumbrances
done, made,
or
grantor,
person
suffered
claim
ing
him.”.(Civ.
1113.)
Code,
under
Unquestionably, prior
probate
sale was a
sale under
purchaser
quitclaim
obtained no more than a
deed
(Miller
applicable.
of caveat
doctrine
& Lux v.
*4
Gray, supra;
Verwoert,
;
Estate
Cal. 488
P.
[171
of
Wickersham,
Estate
sell the placed reliance of the sale the court. Considerable Backesto, 63 company holding in Estate upon the title proce- under the new Cal.App. 597], which arose properly not, “A sale is case, the court dure. said: upon express order of judicial is made spealdng, a one unless it subject matter of the having jurisdiction of the the court purpose carrying and which it sold for the directs to be disposition directing a of its effect, its into or of statutory requirement proceeds.” “the It also stated that confirmed, does not pass the sale be that no shall until Certainly judicial this lan- give it the incidence of a sale.” to Derkatch was not a guage wоuld indicate that the sale challenged in that case judicial one. But because the annexed, acting will an administrator with the was made will, the decision express conferred under category persuasive argument placed in should be authority. rather than language Elvidge, in Hamilton v. contrary
To the is certain 239], to the effect that P.2d Cal.App. “[t]hе subject maxim caveat buyer at such a sale ... warranty of the title of without the dece- and takes merely facts of the case involved However, the dent. ...” representing money validity encumbrances of certain during of the estate. These were the administration received doctrine, and therefore the lan- subject to the held not to be existing an encumbrance at deals with guage, insofar as it death, dictum. date of is at best provides “. . . the of the Probate Code execu- Section 754 public auction . . . either or administrator sell tor property sale, using discretion as to private his subject ap- Although such a sale is to sell first. ...” Backesto, supra, in Estate proval court, observеd is made “A one unless it sale is not ... Accordingly, as the sale express the court. ...” order of order and pursuant made to such an to Derkatch was not approval, court the transaction was submitted judicial sale. it was not a company were and the title Derkatch
Moreover, both
offering
rely
of sale as
on the notice
entitled
trust.
It stated that
the deed of
the lien of
for sale without
.
to all the State
“.
property would
sold
name
assessments of whatsoever
County taxes and whatsoever
*5
The words “taxes”
or nature.
...”
and “assessments” do
trust,
excepting property
not
a deed of
purchased
describe
implied
at a
there is an
condition that land will
(Crim
conveyed
Umbsen,
free from encumbrance.
v.
178, 132
Smiddy
Am.St.Rep. 127];
P.
Grafton,
433,
921].)
Practical considerations the administration of justify the estates decedents also the conclusion prop- that erty pursuant seq. sold 754, to sections et of the Probate is conveyed any Code to be free of encumbrance not stated in If the offer. the rule caveat should be held to apply to sale of in real estate with procedure accordance specified by impossible section it would be difficult or liquidate circumstances, safely assets. Under such no оne could intelligently Normally or public make a bid. do records money unpaid show the amount upon a note secured by mortgage given or deed of trust at a time. As a matter right, inquiry no payee can concerning be made request of a might require status loan and of that kind any much more clerical work than bank financial institution quite willing Also, certainly, rеply if a assume. were liability it made, would be on basis no an error or many omission and cases, because of residence another reasons, payee or for readily state other would not be accessible.
The found, upon trial court evidence, substantial company paid that the title necessary amount satisfy the note and dеed of trust without instructions from the However, administratrix to do so. under the facts shown record, the lack of payment make that liability. does The not establish deed of trust obliga was an directly conveyance related tion for which the escrow If responsible. debt, not paid holder was obligated have been administratrix would to do so, and she damagе no the use of the suffered estate’s funds for that contract, Had sued purpose. she she could have re damages special agent nominal from her covered for do legally herself was ing very that which she bound to do in that Code, (Civ. 3360; Kenyon transaction. see v. Western Co., Tel. Union 100 Cal. money governed
Her action for had and received sрecific principles. Although different was no al there legation company complaint in the the title collected money received adminis the use and benefit tratrix, the omission was cured the answer to that effect. theory adopted her, That is the for she declares case *6 money in and re that, reality, complaint is one for Unquеs ceived, by and defect it was cured the answer. theory, tionably and the upon trial was conducted fully supports evidence the conclusion of the trial court that money had and upon the action one the common count received. law, governed it is an is
Although such
action
one at
Court,
equity (Philpott
Superior
1 Cal.2d
principles
v.
Corp. v.
990];
Finance
635,
512
P.2d
95 A.L.R.
Traders
[36
Sanders,
Highway Comrs.
Cal.App.
;
139
P.2d
191 [33
474]
1913A
280, Ann.Cas.
Bloomington,
v.
III.
N.E.
164 [97
692]).
Richter,
N.W.
;
Accordingly, brought by as the action the adminis governed by equitable principles, is she tratrix cannot recover paid in discharge from the escrow holder the amount of the very conveyance obligation upon the estate’s the escrow equities might to effect. The well be holder was directed applied upon totally payment if had been a different estate, or if volunteer were obligation unrelated satisfy paid he seeking amount which recover the equity good But legal conscience obligation another. recovery by administratrix an permit will not company to relieve the estate from paid the title amouut subject of very sale which was the obligation upon legal escrow. is reversed. The Schauer, J., C., Traynor, J., Shenk, J., J., Gibson, Spence, J., concurred.
CARTER, J. I dissent. I believe that the sale an executor is emptor majority opinion rule. The reasons caveat that a sale preceded by administrator not a court ordеr therefor, by confirmation, but followed judicial is sale and, therefore, emptor caveat applicable. is not That is a sequitur non application emptor caveat is not based upon judicial whether or not. It arises other from Hence, point the turning is not whether the sale is factors. or is not a one. It was said in the first case in this subjeсt: state on the- “The effect of an administrator’s convey purchaser deed is the title the deceased. Such a warranty deed can contain title. The pur no chaser must know the probate law. The notice was of a sale. bidder, therefore, The knew the character of the sale, the deed, effect of the and was bound to еxamine the title for language himself. The put of the notice him guard. his sales, these caveat (Halleck the rule.” Guy. Cal. Am.Dec. In Miller Lux& v. Gray, 770], it is said: “It is well settled *7 an making administrator in sales of real estate is the mere instrument the law title, such only and of transfer such by title as is held the estate. His deed is in fact but a quitclaim deed, uniformly and so it is touching held such sales that emptor the doctrine of caveat applies. The same principle applies in case of lease. It is but an estate for years, dependent carved out of and upon the sufficiency of larger the title of the of estate the deceased. respect this by there nois distinction between a lease an administrator and by guardian; uniformly guardian’s lеase and is held that a imply any quiet enjoyment. not covenant lease does of .. . Moreover, an administrator cannot contract so as to make except liable, by as . . Gray, his estate authorized statute . administrator, power the as had to make this lease . . but . leasing years in he an carved out estate for from such as in interest wеre the estate of Turner.” [Emphasis As as late this court said in Texas added.] Assn., Co. v. Bank America etc. 44 Cal.2d P.2d of majority (not opinion): “Appellant cited in the invokes 127] emptor respondent’s recovery. of caveat to defeat the doctrine applicable This doctrine is insofar as the estate’s title to the property Appellant demised is concerned. leased such title respondent’s as the decedent at his death it was Jiad title, of that bidding, nature the duty to ascertain before any de complain of confirmation, not, after for it could Blankenship also, (See, [Emphasis added.] fects therein.” Verwoert, ; Estate Whaley, Cal. of is clear that the basis the caveat rulе Thus it is convey or cannot sell anything except that the administrator the deceased at the time of death; the interest of his he is instrumentality who, supervision under the mere court by (confirmation indispensable) is the deceased’s inter- transferred; authority any no to make he has est is warranties by court; purchaser the charged unless authorized the with quality deceased’s title. In other knowing the words when hy authority the another purports to sell one warranty title, or, expressed by is no as law there Williston: principle the illustration of ‘‘The commonest referred to in is found in who section sales those preceding purport the authority in or by virtue of fact law. persons sell" Such they expressly title are nоt warrant liable unless for the person supposed who is of title own lack sheriff, of sales made goods So in cases ... or other auctioneer, or officer, mortgagee, assignee or an or administrator, bankruptcy, or executor or guardian, or If agent, as such. seller either has simply or au- sale, thority principal from a make the if in fаct any agent’s other reason principal is bound act principles agency impose well-known making the will if principal he obligation same made directly agent wholly himself. The not free from he authority all that warrants is his implied obligation, but if principal, authority he has for the to act he If have will be liable. assumes to seller’s which he by law, upоn him as in the is conferred case course, implied can, warranty be no sheriff, there more than goods officer who makes owner of officers, agents power unlike such whose Moreover the sale. *8 fact, validity authority in do warrant derived from they They purport are, to exercise. authority which of the representations, fraud, negligenсe liable for actual however, (Williston on duties.” Sales of their exercise [rev. ed.] in the things All are these 566.) [Emphasis 220, p. added.] § and beneficiaries protection creditors and the benefit certainly safeguarded by a con- they are as of the estate authorizing Hence, order a sale. after firmation definition of question hinge a technical should not on after confirmation sale and sale—whether an order for depends Rather, required, or confirmation. are say that agent making sale. To the nature procedure the sale merely by simplifying Legislature, long wipe out the order, intended to eliminating prior hardly reason- caveat firmly rule of established provision retains Indeеd, the Probate Code still able. conveys all by an administrator long existed, that the deed decedent ... “right, title, and estate interest Nothing more (Prob. Code, 786.) the time of his death.” conveyed. rule correct followed the my opinion trial court purchase full entitled holding plaintiff was of law in should be property, and price paid for the affirmed. rehearing January for a denied
Respondent’s petition J., rehearing. Carter, J., Traynor, voted 26,1950. In Bank. Dec. F. No. 17994. [S. 1949.] EDWARDS, Appellant, v. ELONEY WILLIAM OTIS Respondent.
FREEMAN,