Halleck v. Guy , 1 Cal. Dist. Ct. 166 ( 1857 )


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  • Hager, J.

    Denied the motion, and stated, the ground relied upon *167on the motion for a new trial, namely: that the bale by the. executors was void, because it was not in.accordahee with the statute of frauds, was no* taken on the trial, nor set up. in the' answer, and ought not to he entitled to much consideration. Although, the section in our statute in regard to fraudulent conveyances and ponteante, relating tó auction sales, applies only to personal property, yet it has been frequently held, under statutes .substantially the same as ours in principle, that sales of real estate made .by an auctioneer, at public auction, and properly subscribed by Mm, ,is a sufficient memorandum wltMn the meaning of sections eight and nine of our Act. The decisions are' based on the principle that the auctioneer is the agent, both of the vendor and vendee; It is also a recognised principle that judicial sedes are not. within the purview and mean?mg of the Act. The- sale in tMs case having been made at" public auction under the direct order of the Probate Court, arid after-wards. confirmed "by that Court, must, be regardéd as a judicial sale, and binding upon all the parties thereto, unless set. aside upon proper and sufficient exceptions to its enfirmation; so that an agreement in writing, signed or subscribed by the parties, was not necessary. In this case the defendant, Guy, had an opportunity to object to the confirmation of the sale by the Probate Court; if he did not do so it is Ms own fault. New trial denied.

Document Info

Citation Numbers: 1 Cal. Dist. Ct. 166

Judges: Hager

Filed Date: 8/15/1857

Precedential Status: Precedential

Modified Date: 1/19/2022