193 P. 578 | Cal. | 1920
Lead Opinion
This is an action wherein plaintiff, as executor of the estate of one Anna E. McCarty, deceased, seeks the specific performance of a contract to purchase certain real property belonging to said estate. Defendant has undertaken to avoid the contract on various grounds and by cross-complaint seeks to recover a deposit made by him. The trial court denied relief to plaintiff on his complaint and to defendant on his cross-complaint, and each party has appealed from that portion of the judgment adverse to him, both appeals being presented in a joint transcript and joint briefs.
[1] There is no merit in the contention that the bill of exceptions cannot be rightly resorted to in aid of the points made upon appeal. The bill was returned engrossed within the required time, and whether or not it had been correctly engrossed was a matter for the determination of the trial judge. (Merced Bank v. Price,
[4] The sale sought to be enforced herein was made pursuant to an order of the probate court which had jurisdiction of the estate of the deceased. Defendant insists, and the trial court held, that the probate court did not have jurisdicion to make the order of sale by reason of a defect in the order to show cause, published as the notice of the hearing of the petition of the executor of the estate for an order authorizing and directing the sale of the real estate involved in the present action. At the time the sale in question was made the Code of Civil Procedure authorized the court to make an order for the sale of real estate comprised in the estate of a decedent in case of necessity to pay debts, family allowance, and the like, or in case it appeared to the satisfaction of the court that it would be for the "advantage, benefit, and best interests of the estate, and those interested therein." (Code Civ. Proc., sec. 1536, prior to 1919 amendment.) Section 1538 of the same code, repealed in 1919, [Stats. 1919, p. 1177], was in effect at the time the sale was made and provided that when it appeared to the court from the petition of the executor or administrator that it was necessary or would be beneficial to sell the whole or some portion of the real estate for the purposes and reasons designated by law, or any of them, the petition must be filed, "and an order thereupon made, directing all persons interested in the estate to appear before the court, at a *198 time and place specified, . . . to show cause why an order should not be granted to the executor or administrator for thesale of such estate." (Italics ours.) The order which is now under attack required all persons interested "to show cause why an order should not be granted to said executor to sell so muchof the real estate of said deceased at private sale, as shallbe necessary." (Italics ours.) Defendant contends that the use of the word "necessary" amounted to a fatal variation from the language required by the statute, and that it was, moveover, positively misleading, inasmuch as the sale was not ordered because it was "necessary" to meet debts, expenses, or the like, but rather on the ground that it would be beneficial to the estate, a ground which, it is insisted, was concealed and even negatived by the wording of the order. The argument is ingenious, but without merit. [5] Reading section 1538 of the Code of Civil Procedure as a whole, it is obvious that the words "such estate" are used to designate, and do in fact mean, so much of the real estate of the deceased as the court in the exercise of its sound discretion may consider necessary to be sold, whether to secure cash to pay debts or the like, or to secure the most advantageous and beneficial administration of the estate, or the advantage, benefit, and best interest of those interested, and it is expressed aptly and plainly by the language of the order to show cause which defendant criticises. The suggestion that the word "necessary," as used in the order, should be construed as "necessary to pay debts and expenses" lies at the foundation of this criticism. The word "necessary," as used in the order, fairly and naturally means "necessary for any lawful purpose," and, so construed, it makes the language of the order comply substantially with the requirement of the statute. The validity of the sale cannot, therefore, be attacked on the ground that the probate court did not acquire jurisdiction to order the sale by reason of any defect in the order to show cause. The view which we have taken of the case makes it unnecessary for us to consider the point raised in the briefs concerning the precise effect upon the validity of subsequent proceedings of a defect in such an order.
The order of sale was valid and within the jurisdiction of the probate court. It is, therefore, doubtful whether the *199
defendant, having failed to appeal from the order confirming the sale, which fixed his liability as a purchaser, has the right to set up, as a defense to the action for the purchase price, alleged defects in the title which were within his knowledge at the time the order of confirmation was made. (Hammond v. Cailleaud,
[8] Defendant finally insists that he is excused from performance by the circumstance that the property suffered a ten per cent depreciation in value by reason of a flood occurring between the time of the confirmation of the sale and the date of the commencement of the action. Bearing in mind that prior to the injury to the property defendant was in equity the owner of the land; that he was unquestionably entitled to the possession of the land under the contract with the estate, and that he had actually gone upon the land with men and teams and done about one thousand seven hundred dollars worth of grading, we have no doubt that the risk of loss was upon him.
[9] By virtue of the right conferred by section 1554 of the Code of Civil Procedure, the property might have been resold and the present purchaser held responsible if, on the second sale, enough was not realized to pay costs and the amount of the present bid, but that remedy is not exclusive and does not prevent a resort by the executor to a suit for specific performance. (Crouse v. Peterson,
It follows from what has been said that plaintiff is entitled to have the contract specifically enforced. The judgment for plaintiff and cross-defendant upon the cross-complaint is affirmed and the judgment for defendant upon the complaint is reversed.
Olney, J., Shaw, J., Wilbur, J., Sloane, J., Lawlor, J., and Angellotti, C. J., concurred.
Rehearing denied.
In denying a rehearing the court filed the following opinion on November 19, 1920:
Addendum
In denying the petition for a rehearing we desire to say that in regard to the claimed depreciation in value by reason of flood, the fact that upon the confirmation of the sale the whole purchase price at once became due and payable, at least upon the original tender and *201 deposit of the deed by the executor, distinguishes the case from the cases relied upon by petitioner.
Rehearing denied.
All the Justices concurred.