Mains

Certain real property owned by the estate of which Mary E. Mains is administratrix was sold by her in accordance with the procedure specified by the Probate Code. City Title Insurance Company, as the escrow holder through which the purchase price was paid, used a part of it without specific authority to satisfy a deed of trust of record. The appeal from the judgment adverse to the title company presents for decision the questions of the legal character of the sale and the escrow holder’s liability for paying the debt.

At the time of his death, the decedent owned certain real property subject to a trust deed to secure a note upon which about $3,800 was owing. Pursuant to section 780 of the Probate Code, the administratrix published notice that the property would be sold at private sale for cash. The terms and conditions of sale were stated as follows: “Purchaser to assume the payment and take the property purchased by him, subject to all the State and County taxes and whatsoever assessments of whatsoever name or nature which are now or may hereafter be charged as a lien against the property purchased by him. ’ ’

The bid of $11,450 made by one Derkatch was accepted by the…

I dissent.

I believe that the sale of property by an executor is subject . to the caveat emptor rule. The majority opinion reasons that a sale by an administrator not preceded by a court order therefor, but followed by confirmation, is not a judicial sale and, therefore, caveat emptor is not applicable. That is a non sequitur for the application of caveat emptor is not based upon whether it is judicial sale or not. It arises from other factors. Hence, the turning point is not whether the sale is or is not a judicial one. It was said in the first case in this state on the- subject: “The only effect of an administrator’s deed is to convey to the purchaser the title of the deceased. Such a deed can contain no warranty of the title. The purchaser must know the law. The notice was of a probate sale. The bidder, therefore, knew the character of the sale, the effect of the deed, and was bound to examine the title for himself. The language of the notice put him upon his guard. In these sales, caveat emptor is the rule.” (Halleck v. Guy. 9 Cal. 181, 197 [70 Am.Dec. 643].) In Miller & Lux v. Gray, 136 Cal. 261, 263 [ 68 P. 770 ], it is said: “It is well settled that an administrator in…

Certain real property owned by the estate of which Mary E. Mains is administratrix was sold by her in accordance with the procedure specified by the Probate Code. City Title Insurance Company, as the escrow holder through which the purchase price was paid, used a part of it without specific authority to satisfy a deed of trust of record. The appeal from the judgment adverse to the title company presents for decision the questions of the legal character of the sale and the escrow holder's liability for paying the debt.

At the time of his death, the decedent owned certain real property subject to a trust deed to secure a note upon which about $3,800 was owing. Pursuant to section 780 of the Probate Code, the administratrix published notice that the property would be sold at private sale for cash. The terms and conditions of sale were stated as follows: "Purchaser to assume the payment and take the property purchased by him, subject to all the State and County taxes and whatsoever assessments of whatsoever name or nature which are now or may hereafter be charged as a lien against the property purchased by him."

The bid of $11,450 made by one Derkatch was accepted by…