57 Cal. 293 | Cal. | 1881
The plaintiffs, one of whom is an adult, the others infants, were devises under the will of their father, Hugh O’Connor. The defendant was one of the executors of the will. In the course of administering the estate, it became necessary to sell the real estate devised, and to that end, after due proceedings, the Probate Court made its order of sale. At the sale the defendant procured one Collins to bid off the property for him. At the hearing for confirmation an advanced bid was made, and the Court directed a resale. The defendant was desirous of purchasing the property, but was advised by his attorney that he could not do so, being one of the executors; that he could sell the property to the highest bidder, and after the completion of the sale he could purchase of such bidder, provided no previous agreement should be made between them. The real estate was put up at auction for a second sale, and at such sale one J. C. Wade became the purchaser, for a fair price, viz., $5,650.- Wade did not bid off the property for or on account of defendant; they had no communication prior to the bidding relating to the sale. Defendant was not present at the sale, but kept away on purpose, so that he might not seem to be interested. He made no effort, beyond the legal advertising, to induce bidders or bidding. Immediately and daily after the day of sale he made efforts to find Wade, in order to bargain with him for the purchase of the,
Under this state of facts, we are of opinion that defendant holds the legal title to the property in trust for the plaintiffs, subject to a proper accounting for the money paid for the purchase, and for repairs, etc., less rents received, and any other proper transactions that may exist between the parties. If defendant had waited until after the sale had been confirmed, he might then have bargained for the property. We know of no reported case holding that an executor or administrator is prohibited from purchasing after the confirmation, even though he then be in office. But in this ease the executor, before the confirmation, before even the sale was reported, bargained with the purchaser, and thus placed his interest in conflict with his duty. His interest was to have the property confirmed at the lowest possible price; his duty was to have the property bring the highest price. It may be said, as the Court below found, that defendant acted in perfect good faith, so far as his intentions were concerned; yet so strict is the law in regard to persons dealing with trust property and funds, that it will not permit them to place themselves in a position antagonistic to the interests of their eestuis que trust At the confirmation, defendant’s interests were antagonistic to the interests of plaintiffs; if some person had proposed to him to make an advance bid, it would
Judgment and order reversed, and cause remanded, \ ith instructions that the Court below take an accounting betwe sn the parties upon the following basis:
Credit the defendant with the amount for which the property was sold to Wade, viz., $5,650; also with the amount paid by him for necessary repairs, taxes, and insurance, and for b hidings erected by him on the premises, if any, since his purcht se; charge to the defendant the amount received by him for re vt; also the use and occupation; balances to bear interest at 1 \e statutory rates, with annual rests; provided, however, that tL í cost of buildings erected by the defendant shall be borne only by the rents, and use and occupation of the premises, and is not to be a charge upon the land; and if the cost of such new buildings exceed the rents and use, the defendant may have the right to remove them within a proper time, to be fixed by the Court below, he being charged with the value of the use of the land, and with the rents and use of the buildings not removed.
The Court below will then decree that defendant holds the legal title of the premises in trust for the plaintiffs, and that upon the payment by plaintiffs to defendant of the amount which may have been found due him, such payment to be made within such reasonable time as the Court below may fix, the defendant convey to the plaintiffs the premises; and if such payment be not made, the premises be sold at public auction, any of the parties hereto having the right to purchase, and from the
The defendant to bear all costs.
Morrison, C. J., and Thornton, J., concurred.
[Subsequently to the filing of the foregoing opinion and order, the Court made the following order:]
In this case it is ordered that the opinion and order herein filed February 18th, 1881, be amended so that the paragraph commencing with the words “ Credit the defendant,” and ending with the words “ buildings not removed,” shall read as follows:
“ Credit the defendant with the amount for which the property was sold to Wade, viz., $5,650; also with the amounts paid by him for necessary repairs, taxes, and insurance, and for buildings erected by him on the premises, if any, since his purchase from Wade; charge to the defendant the amounts received by him for rents; also the value of the use and occupation of such portions of the premises as may have been occupied by defendant; balances to bear interest at the statutory rates, with annual rests; provided, however, that the cost of buildings erected by defendant shall be borne only by the excess of the rents and use and occupation over the cost of repairs, taxes, and insurance, and shall not be a charge upon the land; and if the cost of such new buildings be greater than such excess, the defendant may have the right to remove them within a proper time, to be fixed by the Court below, he being charged with the value of the use of the land occupied by such buildings, and with the rents and use of the remainder of the premises. In case of removal, the repairs, taxes, insurance, and rents of the buildings removed will not enter into the account.”