No. 6748--January, 1879.


SALE OF REAL ESTATE.--Variance between written bid and order and notice of sale.


A purchaser who has filed a written bid which is, by it conditions, at variance with the order and notice of sale of real estate, but to whom the

real estate has been confirmed, in accordance with his bid, is not entitled to have the decree of confirmation vacated and himself

released from his contract on the variance.


Construing section, C. C. P., 1554.





McAllisters & Bergin, for executors.


P. G. Galpin, for purchaser.


The order for sale of the real estate, authorized the executrix and executor to sell.  “at either public or private sale, as they shall judge to be most beneficial for said estate, for cash, or on a credit not exceeding one year, payable in gross or in instalments.”

The notice given, inviting bids, stated that the sale would be “for cash, in gold coin.”

The following bid was received:


SAN FRANCISCO, October 2, 1878.

“To Executors of the Estate of James Otis, deceased:

“I offer, for sixty days, the sum of $7,5000 for the 50-vara lot 5, in block 238, Western Addition, with perfect title, and free from all liens and incumbrances.  Terms, one-third cash on delivery of deed, balance payable in two years, at 8 per cent. interest per annum, with privilege of paying off the whole, or part, before maturity; and for any sums so paid, a discharge to be given of so much of the land equal in value to the amount paid.  I enclose $500 as a deposit.

“L. S. B. Sawyer.”


Report of the sale was made, and notice of hearing given by posting.  A decree made, confirming the sale to L. S. B. Sawyer, reciting as follows:

“That at such sale, L. S. B. Sawyer became purchaser of said parcel of real estate, for the sum of seven thousand five hundred dollars, in United States gold coin, payable in manner following, to wit: One-third of  said sum of seven thousand five hundred dollars, to wit:  two thousand five hundred dollars, cash on delivery of deed therefor, and the remaining sum of five thousand dollars, with interest at rate of eight per cent per annum, payable in two years, with the privilege of paying of the whole, or part thereof, at any time within said two years; and a discharge of the mortgage to be given of such part of said real estate as shall be proportionate to the amount of partial payment made, and the deferred portion of said purchase price to be secured by mortgage upon said parcel of land.”

            L. S. B. Sawyer now asks that the order of confirmation be set aside, on the ground that the notice of sale did not conform to the order of sale, and that the bid contained provisions not embraced in the order.


By the COURT:  The application of L. S. B. Sawyer is denied.  In law, he had notice of terms of the order of sale, and of the notice given; he, having such notice, put in such bid as he was advised.  He had notice (by posting) of the hearing for confirmation, and, in contemplation of law, was present, making no objection.  He cannot now be heard to say that the bid and confirmation were not according to the notice.  Whether or not the title would pass, is not now considered; neither is it considered whether the order of confirmation would be sustained on appeal.  It is only considered that the motion of the purchaser to vacate the order of confirmation cannot be sustained.



Transcribed by Pat Seabolt.

© 2007 Pat Seabolt.