The record-union., 1895-12-23

monument to the genius, intelligence
and learning of it's authors, but now
mutilated almost beyond recognition by
legislative vandais, they present on va
rious subjects an incongruous mass of
contradictions and absurdities, and the
courts are burdened with litigation in
the attempt to solve many vexatious
questions. All this might have been
avoided if the original Code Commits
sion had been continued and to their
wisdom and discretion had been left
the making of such amendments as
time and experience would dictate as
wise and proper.
The proceedings to obtain an order of
sale are initiated by the filing of pc
tition by the administrator, executor, a
creditor, or, in fact, by anyone inter
ested in the estate. The facts required
to be stated in such petition are set
forth with great particularly in the
statute. For years the Supreme Court
of the State adopted very strict and
narrow construction in passing upon
such petition, and many sales were de-
clared invalid because some fact of
trifling Importance had been omitted
from the petition. To remedy this evil
the Legislature of 1874 amended Sec
tion 1873 of the Code of Civil Procedure,
and provided that a failure to set forth
in the petition the facts showing the
sale to be necessary will not invalidate
the proceedings, if the defects be sup
piled by proofs on the hearing of the
petition, and the general facts showing
the necessity for the sale be stated in
the decree authorizing the sale
But, Notwithstanding this amend
ment, the Supreme Court in 1877, in the
estate of Smith (51 Cal. 564) persisted
i'll its assaults upon probate sales, and
held that sale was invalid because
the condition" of the property to be
sold was not stated in the petition
although it appears from the reading
of that decision that the defect was
supplied at the hearing, and the general
facts showing such necessity were
stated in the decree of sale. Again, as
late as 1890, the Supreme Court seemed
to hold that either the petition or the
order of sale must show whether the
real estate is separate or community
property, but we can scarcely divine
the process of reasoning by which the
question OF separate or community
property is included in the general facts
showing the sale to be necessary.
AT length in August, 1895, the Su-
perior Court, in Burris VS.. Kennedy al
Pac. Rep. 45S), in an opinion concurred
in by all the Supreme Justices, threw
down these narrow bars and gave full
force and effect to the amendment OF
1913, and although many irregularities
appeared in the proceedings for the sale
the sale was declared valid. So that we
may now safely proceed with a sale Of
real estate even though the petition is
defective, provided that the defects be
supplied upon the hearing of the peti-
ton and statement of facts showing
the necessity for the sale be stated in
the order of sale.
Many controversies have arisen in the
courts from the fact that in a number
of instances after purchaser has made
his bid at a probate sale and paid an
iEstallment of the purchase price, the
discovery has been made that the title
of the decedent was clouded A popular
and mistaken impression prvafIs that
title to property acquired through court
proceedings becomes by some magic
power perfect and impregnable to the
attacks of the most technical student
Of titles. In probate sales the purchaser
acquires simply the claim of the deced-
ent TO the property, whether such claim
be good, bad or Indifferent
In fact, the purchaser buys at his
peril, and he is bound by his bid. al
though the title may be very defective,
and If he refuses to pay the purchase
price, the administrator or executor Of
the estate can compel payment by SUIT
and the fact that the title is not good
would not constitute a defense. The
only safe course for purchaser at a
probate sale is to insist upon an oppor-
tunity to examine the abstract of title
before making a bid
Our laws expressly provide that no
executor or administrator must, direct
ly or indirectly, purchase any property
or the estate he represents, nor must
he be interested in any sale but in Scott
VS.. Umbarger al Cal. 410) and Bernaf
VS.. Lynch (36 Cal 146), where the ad-
ministrator purchased property of the
estate indirectly through a third party,
the sale was held voidable and not alb
solutely void-that the heirs could at
their option have the sale set aside
and the administrator declared to hold
the property purchased in trust for the
heirs.
Mr.. Joseph closed his lecture by dis
cussion of the decisions of the courts re-
lating to powers Of sale contained in
wills of teStatOrs