13 Kan. 518 | Kan. | 1874
The opinion of the court was delivered by
III. The probate court unquestionably had a right to appoint some person administrator. The facts already stated gave the court jurisdiction. But it is claimed that the court should have appointed a brother, sister, or creditor of the ’deceased; or that the court should have cited all the broth
Y. We think the order of the probate court directing that the property should be sold a second time was valid. It is claimed that said order was and is void, first, because the first sale was valid, and because the probate court has no
5. power of prosáfasidead-0 sale. First: It must be recollected that Meagher, the purchaser at the first sale, never paid the purchase-money. The administrator substantially reported this to the probate court when he made his return of the sale. The administrator did not report that “the purchase-money had been paid,” but on the contrary reported, “that the parties are now ready to pay said sum of money upon delivery to them of deeds,” etc., plainly showing that the purchase-money had not yet been paid when he made his report. And upon this return the probate court confirmed the sale. Now a court that has power to confirm a sale, as the probate court in this state has, (Gen. Stat., 457, § 132,) we should think undoubtedly has the power to refuse to confirm in cases where the sale should not be confirmed; and when a court has erroneously or unadvisedly confirmed a sale, it undoubtedly has the power to set the confirmation aside; and when the court has rightly either refused to confirm a sale, or has set the confirmation aside, it undoubtedly has the power to order another sale. These propositions seem to us self-evident. The court in every case undoubtedly has the right to treat the sale as not a completed sale, or indeed substantially as no sale, until the purchase-money has been paid or tendered. And if the court should at any time before that time be of the opinion that the sale should be set aside, it would undoubtedly have the power to set it aside merely for reason that the purchase-money had neither been paid nor tendered. Until the purchase-money is paid or tendered, the whole matter probably rests in the discretion of the court; and the court may as it chooses (exercising a sound judicial discretion,) hold the sale as valid, or set it aside.
Second: No notice was ever given to Meagher, or to any one else, that the sale would be confirmed; and as Meagher
Third: We think that the first sale was in fact set aside. It is true, that it was not done in very explicit terms, but the petition of the administrator asked that the sale should be set aside and a new sale ordered, and the court in pursuance of said petition ordered the new sale.
The judgment of the court below is affirmed.