55 Cal. 67 | Cal. | 1880
This is an action brought by F. A. Tracy, guardian ad litem of the minor heirs of Thomas Baker, deceased, and the widow of said Thomas Baker, to obtain a decree setting aside certain conveyances made by the administratrix of the estate of Thomas Baker, deceased, to defendant Hewlett, on the ground that the purchase made by said defendant Hewlett was made
The facts, about which there is no controversy in this case, are: that Thomas Baker died intestate; that his widow was duly appointed administratrix of his estate; that pursuant to an order of the Probate Court, of which defendant Colby was Judge, she sold at public auction, on the 2nd of December, 1874, the land described in the complaint and belonging to the estate, to the defendant Howlett; that on the 20th day of December, 1874, said sale was confirmed by said Probate Court, said defendant Colby still being Judge thereof; that on the 4th day of January, 1875, said administratrix signed, scaled, and acknowledged a conveyance of said land, but did not deliver the same to said defendant Hewlett until the 28th day of Januaiy, 1875 ; that on the same day that said deed ivas delivered by said administratrix to said defendant Hewlett, he executed and delivered to said defendant Colby, who was still Judge of said Probate Court, a deed of an undivided one-half of said land, for which he paid to said defendant Howlett one-half of the sum which the latter had paid for the whole of said land.
It is alleged in the complaint, and denied in the answer, that said last-mentioned conveyance was made pursuant to some agreement, or understanding, between said defendants, entered into prior to the sale of said land by said administratrix. Upon this issue the finding of the Court is in favor of the defendants.
On the trial the plaintiffs called as a witness one Julius Chester, who testified that he was acquainted with the defendants, and that on the day of the sale of said land by said administratrix he had a conversation with the defendant Howlett in regard to his purchase of said laud. The plaintiffs’ counsel then asked the witness some questions, so framed as to elicit from him what defendant Howlett at that time said about any one being interested with him in his said purchase. These questions were objected to, on the ground that no proper predicate had been laid, “ in this, that the allegations in the complaint are a conspiracy between the defendants, and it has not been shown that the defendants were both present at the conversation offered to be introduced.” The objection was sustained, and plaintiffs excepted. Thereupon plaintiffs offered “ to prove by
As to the materiality of the evidence offered, we entertain no doubt. The defendant Howlett is not shown to have occupied any position which forbade his purchasing property for himself at said administratrix’s sale; and the sale to him can be avoided only by proving that some person who could not, upon well-established principles, be permitted to purchase, or participate in the purchase, of said property at such sale, was interested in the purchase made by Howlett. If the defendant Colby stood in such a relation to the estate of the deceased, as would render a sale of any part of it to him voidable at the instance of the heirs of said estate, then a purchase by him and another person jointly would make the whole sale voidable. It became therefore of the first importance that the plaintiffs should prove that Howlett was not buying for himself alone, but that he was buying for himself and Colby jointly. And the declarations of Howlett, at the time and place of the sale, to that effect, taken in consideration with his subsequent conveyance of an undivided half of the property which he purchased, to the defendant Colby, would, if not otherwise satisfactorily accounted for, tend very strongly to prove that both were interested in the purchase nominally made by one of them. And if such were found to be the fact, the heirs of the estate would be entitled to have the sale set aside. That trustees, strictly so-called, and administrators, executors, solicitors, and assignees, of a bank
Besides, a sale of this character is a judicial sale, in which the person conducting the sale is the mere organ of the Court. “A bid offered to the person conducting the sale is a bid offered to the Court, and a bid accepted by such person is a bid accepted by the Court, for-its future consideration, and judicial determination, in confirming, or refusing confirmation of, the sale.” (Rorer on Judicial Sales, § 23.) Any evidence, therefore, having a tendency to prove that the defendant Colby was interested in the bid of the defendant Howlett, was admissible on the trial of this action. And the admissions and declarations of Howlett to that effect were clearly admissible. The finding of the Court “ that on the 28th day of January, 1875, the said John Howlett conveyed one undivided half of said lands to P. T. Colby, (co-defendant) upon a contract and agreement made on that day, and not in pursuance of any fraudulent contract made prior thereto,” is defective. It leaves room for an inference that the conveyance might have been made pursuant to an agreement entered into prior to the administratrix’s sale, which, in the opinion of the Court, was not fraudulent. If such an agreement was entered into before said confirmation, it is wholly immaterial whether it was actually fraudulent or not. The find
A Judge cannot act in an action, or proceeding, in which lie is interested. (Code Civ. Proc. 170; People v. De la Guerra, 24 Cal. 73; Dimes v. Proprietors of Grand Junction Canal, 3 House of Lords Cases, 759.)
Judgment reversed, and cause remanded for a new trial.
Thornton, J., and Myrick, J., concurred.
