Amador ledger., 1909-03-05


highest bidder; and whether the high
est bidder In such case acquires any
right, by reason of his bid to compel
the executor to accept the same and
make him a deed upon the tender of
the amount so bid i
It is we'll settled law that a bidder
at an auction sale may withdraw his
bid even after It has been cried, at
any time before the hammer falls on
the properly is knocked off to him
The auotioneer is the agent of the
vendor, and the assent of the both
parties is necessary to make the con-
tract; that is siguified by the seller
by knocking down the hammer.
Every bidding is moth ing
more than an offer on one side. which
is not binding on either side till it is
assented to-"
The three above mentioned cases
we're all much stronger cases for the
petitioner than Is the case here, for
In each of those cases, confirmation
of the sale had to be made by the
court before any deed could be made,
and the petitioner In each case was
seeking for an order of the court re-
quiring the officer vested with power
to sell to accept his bid
No such proposition confronts us
in this case. for the tax collector 10
not required, upon making a sale, to
report it for confirmation to any
officer, but upon such sale and receipt
of the amount of the bid he is re-
uuired to at once execute a deed to
the purchaser.
In each of the three last mentioned
cases. in determining the rights of
the petitioner to compel convey
governing auction sales. AS the
statute here prescribes that the tax
collector must make the sale at public
auction in determining whether plain
tiff Is entitled to writ we may look
for Information to the laws regulating
auction sales. Thus in Hibernia s.
and l.. Soc. vs.. Behke, l21 Cal. 342,
the supreme court of this state de-
cided that at a sale upon a decree OF
foreclosure, the bidder was entitled to
withdraw his bid before it was ac-
cepted, because the sale was by anc-
tion, and the rules of auction sales
was, that the bidder may withdraw his
bid at any time before the hammer
falls.
Tested by the law governing auction
sales, there was never in this case
even an offer on the part of the tax
collector to sell the property, much
less the acceptance of bid, or the
making of sale. Under the anthori-
zation of sale from the state control
ler the defendant was directed to sell
the property in separate parcels. and
no offer was submitted by plaintiff
for any separate parcel. Furtherm ore,
section 1889 political code provides
that the deed by the tax collector
upon a sale ''shalI recite the facts
necessary to authorize such sale and
conveyance, and the tax collector
could not truthfuIly recite that he
had sold the land or offered 1t for sale
either as whole or in parcels.
= MandamuS cannot be resorted to for
the purpose of compelling the de-
livery of deed containing recitals of
what occurred at sale contradictory
of,the sheriff IS return, whiohIhe claims
is correct In point of fact
Hewell VS.. Lane, So CAL, 2l7.
Plaintiff quotes Merrill on Man
damus. to the effect: "That where
an officer has neglected to do his
duty until the time for action by him
sua sponte has expired, the writ Will
still issue and in that sense alone
may be considered to have given a
new authority" " Concedlng this to
be the law in this state 1t is not
sufficient hority to entitle plaintiff
to the writ demanded here, for even
though defendant had no power to
postpone the sale, the most that
plaintiff could claim would be a writ
commanding defendant to proceed
and make the sale under his said
order from the controller. 1t is not
an authority authorizing this court to
command defendant to execute deed
reciting a sale. when in truth no sale
was ever held.
The defendants demurrer is sus-
tanned, with leave to plaintiff, if he
90 daairaa tn amand his natitinn To