The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1876-05-31

1 interest and estate Of w. II. Kaauwai in that
part OF the land known as the III Of Papohaku
which was under lease 70 G. Armstrong.
The administrator bad tight TO offer less land
than his license covered, for It was necessary TO
sell only so much as was sufficient to pay the de-
ceased intestate's debts.
1t is 10 evidence that apana Of the royal pat
ent No. 5537. being apana Of the poster, was
under lease to Armstrong, and OF this. at least,
the respondent, according TO all the testimony,
became the purchaser. The sale Of this piece TO
him is not void on the ground Of its being 10
amount less than the total amount Of land au-
thorized to be sold by the license Of the probate
court.
The objection OF respondent remains. that as
auction sales are within the statute Of frauds, no
memorandum Of the sale 10 writing was signed
as required by that statute.
The testimony Of II. W. Daniels aud J. K.
Kali Is conclusive on that point-to Wit that
the clerk OF the administrator auctioneer, one j.
K. Kali, wrote at the time OF the sale the do.
scrip,ion Of the land sold, the amount OF acres
and the price bid per acre, the total amount aud
the name Of the purchaser, and that il was signed
BY the anctioneer 1t is true that the original
memorandum is not produced, but both these
witnesses testify as to its contents aud the clerk
ies,i6es that the memorandum 6led Ia the return
ieiual made by him few days after the sale.
But il the requirements OF the statute OF fruuds
had not been complied with. 10 sales OF this "a
ture being judicial sales and beng subject to con-
6rmation such memoranda are not necessary to
their validity. II is true that in the case OF
Smith vs. Arnold. 5 Mason 400, Story. j. says
that an administrators sale is not judicial sale,
because the court when it has once authorized
the administrator TO sell is ftRcfHs oDieio and the
proceedings Of the administrator Hever came be-
fore the court for examination or confirmation"
But by our statutes and practice, sales by ad-
ministraiors have all the characteristics Of judi
cial sales as indicated in the decision above CT
ted They are subject TO confirmation by the
court which grants the license.
In the case at bar the sale was distinctly sta
ted both by the poster and by the auctioneer
verbally to be subject to the approval Of the
court at the courthouse. Honolulu" II is true
that at the time of confirmation in this case. the
purchaser was not present. But be could have
fled his objections and made himself party il
he chose. However desirable it may be to notify
purchasers Of the time Of the hearing for con6r-
nation OF such sales there is no statute requiring
it. nor does 1t appear to have been the practice.
The defendant had notice at the moment OF
his being declared purchaser. that it would be re-
ported to the court for confirmation. and knew
that il there were any reasons why he should not
take the property which he bid for, he would be
heard eIfectually.
Bot the failure to notify the purchaser TO be
present does not take away from these sales their
judicial character, which from the beginning to
the end are under the guidance and direction OF
the court aud are not therefore within the
mischefs supposed by the statute of frauds"
The decree Of the Vice Chancellor is affirmed
With costs.
CHAs. @. HARRIs,
A. FRANCIS JuDD,
Justices Supreme Court.
z. Preston for defendant w. G. Jones and A.
5. Hartwell for respondent.
Honolulu. Nav g. 1876.