39 Neb. 322 | Neb. | 1894
On the 12th day of May, 1890, M. O. Maul, administrator of the estate of .A. B. Snowden, sold at public auction the east one hundred feet of lot 2, Bartlett’s addition to the city of Omaha, having first obtained a license to make such sale from the district court of Douglas county. Meyer Heilman was present at such sale and the highest
"Whether the district court had jurisdiction to make the order appealed from depends upon whether the sale made by the administrator under the license granted by the court was a judicial sale. What is a judicial sale? “All sales
The law of this state governing the sales of the real estate of Intestates by administrators' is found in chapter 23, Compiled Statutes, 1893. By section 67 of this act an administrator can only sell the real estate of his intestate when the personal estate is insufficient to pay the debts and charges of administration of the estate of the intestate.
By section 68 the administrator,-in order to obtain a license for the sale of real estate of his intestate, must present a petition to the district court of the county in which he was appointed. In this petition he must set forth the amount of the personal estate that has come into his hands; how much of such personal estate remains undisposed of; the debts outstanding against the estate of the intestate; a description of-all the real estate of which the intestate died seized, and the condition and value of such real estate; and this petition must be verified by the oath of the administrator.
! By section 69 the district court is- authorized, if it appears- from an inspection of- the petition that there is not sufficient personal estate in the hands of the administrator to pay the debts of the intestate and the expenses of administration, to make an order directing all persons interested in the estate to appear, at a time and place in such order specified, and show cause why license should not be granted to the administrator as prayed in the petition.
■- Section 70 requires that a copy of such order to show cause shall be personally served on all persons interested in the estate at least fourteen days before the time appointed for the hearing oh the petition, or that such order shall be published four weeks in such newspaper as the district court shall direct in the order.
Section 72 provides that at the time and place appointed
. Section 73 provides that the administrator may be examined on oath ; that witnesses may be produced and examined by either party to the proceeding, and that the court may issue process to compel the attendance of wit-, nesses and the taking of testimony, as in other cases.
Section 79 provides that if the court shall be satisfied, after a full hearing upon the petition and an examination of the evidence that it is necessary to sell a whole-or- a part of the, real, estate 'for the .payment- of the valid claims against, the intestate and the charges of administration, the court shall then make an order^of sale authorizing the; administrator to sell the real estate of the intestate. .
, Section 80 provides that this order of sale shall specify the lands to be sold, and that .the court, may direct the order in which the several tracts, lots, or parcels shall,-be sold.
Section 81 provides that after, such order of .sale has been made the judge of the court shall deliver a certified copy of it to the administrator, and this shall, be his authority for the sale of the real estate of- the intestate. ■
Section 83 provides how and what, notice of sale shall be given by the administrator; but pro vides,that- ifythere shall be no newspaper printed in .the county in which- the sale is to be held, that notice of such sale shall be given by being published in such paper-as the court may direct.
, . Section 87 provides that the administrator, after making such sale, shall immediately ma.ke a report of his .proceedings under the order of sale to the district court granting
Section 88 provides that if the district court shall be of the opinion that the sale by the administrator was legally and fairly conducted, and that the sum bid for the property is not disproportionate to its value, or if disproportionate, that the amount realized would not be increased as much as ten per cent by a new sale, then the court shall make an order confirming such sale and direct the administrator to execute a conveyance to the purchaser.
It will be observed that a proceeding by an administrator to sell the real estate of his intestate is, under this statute, in all respects a judicial proceeding. The sale can only be made by authority of and by an order of the court. The order to make the sale can only be granted by the court, or judge thereof, after due notice to all persons interested in the estate of the intestate. The application of the administrator for leave to sell the real estate must be heard like any other proceeding by the court, and granted or denied after hearing the evidence. Finally, after the sale has been made it must be reported to the court, and is not a sale until confirmed. By the term “court” herein is meant the court or judge thereof when authorized to act. The administrator and the entire proceeding are under control and direction of the court from the time of the filing of the, petition until the proceeding is ended and determined by the conveyance of the real estate sold to the purchaser thereof. It certainly cannot be doubted but that the court in this case had power, had the appellant complied with his bid, to compel the administrator to execute and deliver to him a conveyance for the real estate sold; and appellant by becoming a purchaser made himself a party to the proceed
Ought the order appealed from not to have been made upon the facts proved in this case? His counsel say appellant acted in good faith, with no intent to deceive the court or interrupt the orderly dispatch of its business, and to compel him to comply with his bid will require him to pay the sum of $800 more for the property than he supposed he was paying. The answer to this is that appellant’s claim that he bid in this property relying on an agreement of the administrator to-pay off the liens thereon out of the purchase money has been found against appellant, both by the chancellor and the referee, and the evidence in the record sustains their finding. It also appears from the evidence before us that appellant had actual knowledge of the terms and conditions on which this sale was to be made, and of the incumbrances existing against the real estate, yet he was present at the sale and bid on the property; that he was given actual personal notice that the administrator, at a certain time and place mentioned, would move the district court for a confirmation of the sale. This notice he disregarded. Having bid in the property at the sale, he made himself a party to the proceeding, and if he had any reason to urge why he should be released from his bid, he should have appeared and resisted the motion to confirm the sale. (Phillips v. Dawley, 1 Neb., 320.) To remain silent while the motion to confirm the sale was pending, and afterwards refuse to comply with his bid, was to trifle with the court and delay the administration of jus
Affirmed.