Thompson v. Superior Court of San Francisco

Citations

• 119 Cal. 538
• 51 P. 863
• 1898 Cal. LEXIS 667

Syllabus

<p>Insolvency—Sale by Assionee—Motion to Vacate—Grounds of Equitable Relief.—Where an assignee in insolvency has m^de a sale by order of the court, which may be set aside upon equitable grounds, the assignee need not resort to a hill in equity, but may preferably move, the court which made the order to set it aside upon any ground of equitable cognizance, and the court will particularly entertain such application, where deception was practiced or a mistake induced by the act of the purchaser, due regard being had to the intervening rights of third persons.</p> <p>In.—Sale of Water Pipe—Eraud of Purchaser—Conditional Order Vacating Sale—Reimbursement of Purchaser—Jurisdiction.—The superior court has jurisdiction to make a conditional order vacating a sale of waterpipe, made to a purchaser for much less than its value, by reason of his fraudulent representations as to the quantity of the pipe, which was unknown to the assignee, and such or- - ■ der may he conditioned upon the payment to the purchaser by thé assignee of a sum sufficient to reimburse the purchaser for his outlay.</p> <p>Id.- -Extinction of Obligation of Assignee—Compliance with Code—Payment into Court—Duty- of Purchaser—Contempt.—The assignee may extinguish the obligation to pay money to the purchaser, imposed by the conditional order vacating the sale, by compliance with section 1500 of the code, and, if no tender or offer of payment could be made to the purchaser through his fault, he may make showing thereof to the court, and pay the money into court for the purchaser, and . it would then be the duty of the purchaser to deliver the pipe to the assignee, and, upon refusal to do so, he would be in contempt, and might be committed until he should deliver it.</p> <p>Id—Ex parte Modification of Order—Notice of Hearing Essential— Want of Jurisdiction — Certiorari.—The court had no jurisdiction, on an ex parte application of the assignee, to modify the conditional order setting aside the sale, so as to make