HALLECK, Executor, vs. GUY

HALLECK, Executor, vs. GUY. Fourth Judicial District Court, August 1857. Judicial Sales—Statute of Frauds—New. Trial. A party cannot rely on a motion for a new trial, upon the fact that a'sale of real estate is void because it was not in accordance with the statute of frauds, when that objection was not taken at the trial, or pleaded in the answer. The section in pur statute of frauds referrmg to auction sales applies only to personal property; a memorandum of the sale of real estate by the auctioneers, properly subscribed, will bind both parties. judicial sales are not within the purview of the act; and sales by the Probate Court, when confirmed, are regarded as judicial sales. A party wishing to object to the validity of a sale, by the Probate Court, has the opportunity when the motion comes np for a confirmation of the sale. At the sale of real estate, part of the property of the late Captain Folsom, which took place last November, under an order of the Probate Court of Sain Francisco County, defendant became purchaser of certain lots. With the exception of two lots, Guy held mortgages on the entire quantity so bought, for money loaned in 1854. Suit was brought by the executors of. Folsom, for $15,850, the amount of sales. On the 20th of May-last, a decree was entered up against Se defendant, directing him to make a credit of $15,46.0 on the mortgage, and directing the payment in cash of the further sum of $400, the amount of purchases on property not covered by the mortgage A mqtion was made for a new trial,, and argued and subnútted on the 2Íth of June; . F. Billings and C?. Tale, for plaintiffs. Whitcomby Fringle $ Felton, for defendant.' [MAJORITY — Hager, J.] Hager, J. Denied the motion, and stated, the ground relied upon on the motion for a new trial, namely: that the bale by the. executors was void, because it was not in.accordahee with the statute of frauds, was no* taken on the trial, nor set up. in the' answer, and ought not to he entitled to much consideration. Although, the section in our statute in regard to fraudulent conveyances and ponteante, relating tó auction sales, applies only to personal property, yet it has been frequently held, under statutes .substantially the same as ours in principle, that sales of real estate made .by an auctioneer, at public auction, and properly subscribed by Mm, ,is a sufficient memorandum wltMn the meaning of sections eight and nine of our Act. The decisions are' based on the principle that the auctioneer is the agent, both of the vendor and vendee; It is also a recognised principle that judicial sedes are not. within the purview and mean?mg of the Act. The- sale in tMs case having been made at" public auction under the direct order of the Probate Court, arid after-wards. confirmed "by that Court, must, be regardéd as a judicial sale, and binding upon all the parties thereto, unless set. aside upon proper and sufficient exceptions to its enfirmation; so that an agreement in writing, signed or subscribed by the parties, was not necessary. In this case the defendant, Guy, had an opportunity to object to the confirmation of the sale by the Probate Court; if he did not do so it is Ms own fault. New trial denied.