Tracy v. Colby

Citations

• 55 Cal. 67

Syllabus

<p>Trustee — Fiduciary — Administrator’s Sale — Constructive Fraud. — A judge, wlio orders a sale, and has the power to confirm or set it aside, comes within the reason of the rule that trustees, strictly so called, and other fiduciaries, cannot make a valid purchase of any part of the estate, in respect to which they have duties to perform. .</p> <p>Id.—Id.—Id.—Id.—Evidence—Declarations.— H. purchased land at an administrator’s sale, and, on the day he received his deed, conveyed an undivided half of the land to G., the Probate Judge, who ordered and confirmed the sale, the latter paying therefor one-lialf of the purchase-money paid by II. In an action brought by the heirs of the intestate against H. and C.— the complaint alleging that the sale to C. was made in pursuance of an agreement, or understanding, between him and II., entered into prior to the administrator’s sale—held, that the declarations of H., made prior t.o the sale, but in the absence of C., that he was about to purchase for the benefit of himself and 0., were admissible in evidence.</p> <p>Id.—Id.—Id.—Id.—Finding.—In the case stated the Court found that H. conveyed to C. upon a contract and agreement, made on the day of the sale, and not in pursuance of any fraudulent contract made prior thereto. Held, that the finding is defective, as it does not negative the allegation that there was such a prior contract, but simply expresses the opinion of the Court that it was not fraudulent.</p>