McCarron v. Herz

This is an appeal from an order directing further proceedings with respect to a confirmation of the sale of real property, and from a subsequent order confirming the sale of said property.

The executors of this estate, pursuant to authority given in the will, sold a parcel of real property at private sale to the respondents Miller for $15,000 on certain terms. They filed a return of sale and petition for confirmation and for an order directing a conveyance, which was noticed for hearing at 9:30 a. m. on May 6, 1955. This matter was the second of nine probate and guardianship matters which were listed on a “Probate and Guardianship Calendar,” which was used by the court commissioner who heard these matters at that time. The Millers had not been informed as to the time and place of such hearing and were not present. The commissioner received an oral bid from the appellants which was afterwards stipulated to have been $16,700. The commissioner wrote on the right-hand margin of the calendar sheet opposite the title of this estate the following: “Bond 2000.00 Appr 15 000.00 Bid 16 250 Sale Confirmed to McCarron,

On May 27, 1955, the executors and the Millers filed a verified petition and motion for an order vacating the order thus endorsed on the calendar sheet on May 6, insofar as it applied to this estate matter, and praying that the return of sale and petition for confirmation be reset for hearing before the court with notice as ordered by the court. This petition alleged, among other things, that by inadvertence and mistake the executors had failed and neglected to notify the Millers of the time and place of hearing of the petition for confirmation, and that as a result the Millers were led to and did remain away from said hearing; that the Millers intended and were prepared to attend such hearing and to make a higher bid for the property in order to protect their original offer; that without any opportunity to the Millers to be heard or to raise their offer a minute order was made announcing the intention of the court to approve the commissioner’s recommendation that the sale to the appellants be confirmed; that this minute order did not set forth or contain the terms of such sale; that no written order or decree confirming said sale has been made or entered; that the Millers have at all times been ready, willing and able and, if afforded an opportunity so to do, are now ready and able to offer and bid for said property a price substantially greater than the price for which the commissioner recommended confirmation of sale to the appellants; and that it is for the best interest of the estate that said minute order be vacated and the matter of confirmation be reset for further hearing. This petition and motion was noticed for hearing before the court ón June 10, at which time the appellants

The appellants contend that after the court signed the order at the bottom of the probate calendar on May 6, 1955, it had no power to vacate the sale and order further proceedings except on a proper showing under section 473 of the Code of Civil Procedure, and that the showing here made did not justify relief under that section. It is argued that the commissioner confirmed the sale to the appellants; that the order signed by the judge adopting the recommendation

Aside from the question of relief under section 473, whether a bidder acquires a vested right to a conveyance depends upon the validity of the order made. In Estate of Leonis, supra, it is stated that if the order of sale is regularly made and not appealed from “it is binding upon all.” In Estate of West, it is stated that “if the order was valid” it gives the purchaser an absolute right to a conveyance. Baldwin v. Stewart, also holds that a valid order confirming a sale, which has become final, “is conclusive.”

The sufficiency of the order signed by the judge on May 6, 1955, depends upon the meaning and intent of that order, and its effect under certain provisions of the Probate Code. Section 756 provides that the order of confirmation must show that proof of the notice of the sale was made. While section 757 does away with the necessity for a notice of sale where a sale of the property is authorized by the will, it also provides that the executor must make a return of sale and obtain confirmation thereof “as in other cases.” Section 785 provides that upon a hearing when certain facts appear the court “shall make an order confirming the sale and directing conveyances to be executed.” Section 786 provides that a certified copy of the order confirming sale and

The commissioner was not authorized to confirm the sale, but only to make a recommendation to the court in that regard. The order on the calendar signed by the judge on May 6 was not a valid order confirming sale within the meaning of sections 1220, 1221 and 1222 of the Probate Code. It clearly appears that it was intended as a preliminary memorandum approving the commissioner’s recommendations in nine different matters. It was not intended to obviate the necessity of a later order of confirmation in this particular matter, to be entered at length in the minute book of the court.or signed by the judge and filed, and did not have that effect. If a certified copy of that order had been recorded it would have been meaningless, insofar as the intent and purpose of these statutes are concerned. It contained no description of the property, no terms of the sale, and no order directing that a conveyance be made. On its face it showed a bid of $16,250, which was less than the increased bid required by section 785. While it is true that it was later stipulated, on June 10, that the oral bid made before the commissioner was $16,700, the commissioner’s recommendation was not in that form when it was accepted and adopted by the court. It must be held that the court’s order entered on the bottom of the commissioner’s calendar on May 6 did not constitute a sufficient order of the court confirming the sale, in the absence of a more definite minute entry or specific order signed by the judge. No valid order of confirmation was entered or filed, and three weeks later the petition and motion to vacate the purported order and to reopen the matter for further bidding was filed. That motion was heard and granted. If it was within the court’s power to vacate the order of May 6, no valid objection is raised to the orders

In view of the purpose and intent of the probate statutes to encourage competitive bidding in the sale of property, and to protect the best interest of the estate and all concerned therein, the court has certain inherent powers in connection with hearing a petition for confirmation of a sale. Its power to continue the hearing is well recognized, and it should be allowed to reopen the matter for a further hearing, on proper notice, where no valid order of confirmation has been entered, where considerable time has elapsed, and where the best interests of the estate will be promoted thereby. In any event, the existence of such a situation is one of the things which may be considered in passing upon the question as to whether a trial judge has abused his discretion in granting a motion for relief under section 473.

It is now settled that relief under section 473 may be granted for the purpose of vacating an order confirming a probate sale. (Estate of Moreland, 49 Cal.App.2d 484 [ 121 P.2d 867 ]; Estate of McCrae, 133 Cal.App.2d 634 [ 284 P.2d 914 ].) It would appear in each of those cases that a valid order confirming the sale had previously been entered since no contention to the contrary appears. If a valid order confirming a sale may be thus vacated it would seem reasonable that a less showing should be required for granting such relief where no definite or complete order of confirmation had previously been entered. The appellants argue that no mistake or inadvertence here appears because the statutes do not require that actual notice of the hearing of the petition for confirmation be given to the original bidder.. That same legal situation existed in connection with the Moreland and McCrae cases, where such relief was granted. In the Moreland case the bidders had been misled as to the date of the hearing. In the McCrae case, while the bidder had not heen misled in any way he had been prevented from attending the hearing by illness. The important thing in both eases seems to be not that the bidder was entitled by law to notice of the hearing, but that he desired and intended to appear and make an increased bid but through inadvertence or excusable neglect, without fault on his part, he had been unable to do so. If such a showing is sufficient to justify the granting of relief where a valid order of confirmation had previously been entered, its sufficiency should be more apparent where

The orders appealed from are affirmed.

Griffin, J., and Mussell, J., concurred.

Appellants’ petition for a hearing by the Supreme Court was denied February 13, 1957.