In re Poulsen’s Estate

• Decision Date: 06 May 1946
• Docket Number: 8822
• Citation: 22 N.W.2d 734,71 S.D. 149
• Parties: IN THE MATTER OF THE ESTATE OF PETER POULSEN, Deceased. BERTHA SAMPSON, Administratrix, Appellant, v. JAMES H. EXON, Respondent.
• Court: South Dakota Supreme Court

71 SD 149, 22 NW2d 734 (1946)

IN THE MATTER OF THE

ESTATE OF PETER POULSEN, Deceased.

BERTHA SAMPSON, Administratrix Appellant v. JAMES H. EXON,

Respondent.

South Dakota Supreme Court

Appeal from Circuit Court, Clay County, SD

Hon. C. C. Puckett, Judge

#8822—Reversed

Everett A. Bogue, Vermillion, SD

Attorney for Appellant

W. R. Cleland, Vermillion, SD

Danforth & Danforth, Sioux Falls, SD

Attorneys for Respondent

Opinion Filed May 6, 1946; Rehearing Denied Jun 15, 1946

(See also, 71 SD 154, 22 NW2d 737)

SICKEL, Judge.

This action involves the validity of an order confirming a sale of real estate in a probate proceeding. Bertha Sampson, the administratrix of the estate of Peter Poulsen, deceased, obtained an order to sell real property at private sale. Notice of sale was published and John Pavlis submitted a bid of $800. The administratrix made a return of sale and petitioned for the confirmation of the Pavlis bid. Notice of hearing thereon was given. At the hearing James H. Exon bid the sum of $880 which the county judge announced orally he would accept. After the hearing a letter was written on behalf of the administratrix by her attorneys to the attorneys for Exon, and presented to the county court, to the effect that the bids submitted by Pavlis and Exon were both disproportionate to the value of the property and that Pavlis had submitted another bid of $968, which was ten per cent more than the amount of the Exon bid, and asking that all bids be rejected and a new sale ordered. Two days later the county court made and entered an order accepting the Exon bid of $880 and confirming the sale to him. Then the administratrix appealed to the circuit court where the order of the county court was affirmed. Thereafter the administratrix appealed to this court.

Appellant does not claim that the proceedings were unfair, nor does she contend that the county court was authorized to accept the second bid by Pavlis. What she does claim is that the second bid of Pavlis imposed upon the court the duty of rejecting the Exon bid and ordering a new sale.

SDC 35.1531 contains the following provision relating to confirmation of sales of real property in the county court “Upon the hearing the court must examine the return and witnesses in relation to the same, and if the proceedings were unfair, or the sum bid disproportionate to the value, and if it appears that a sum exceeding such bid at least ten per cent, exclusive of the expenses of a new sale, may be obtained, the court may vacate the sale and direct another to be had, of which notice must be given, and the sale in all respects conducted as if no previous sale had taken place; if an offer ten per cent more in amount than that named in the return be made to the court in writing by a responsible person, it is in the discretion of the court to accept such offer and confirm the sale to such person or to order a new sale.

SDC 35.1533 contains the following provision:

“If after the confirmation the purchaser neglects or refuses to comply with the terms of sale, the court may, on motion of the executor or administrator, and after notice to the purchaser, order a resale to be made of the property. If the amount realized on such resale does not cover the bid and the expenses of the previous sale, such purchaser is liable for the deficiency to the estate.”

At the time of the hearing on the report of sale and petition for confirmation, the court was authorized by the statutes to consider any offer of ten per cent more than that named in the return of sale, if made in writing by a responsible person. The statutes permitted the court to accept such an advanced bid and confirm the sale to the bidder, or order a new sale. The Exon bid was made according to the terms of the statute and the order of sale. But the second Pavlis bid was not made nor reported to the court until several days after the hearing. That bid did not comply with the statute as to the time of presentation and therefore the court could not accept it. This appellant concedes.

The statute also provides that the court may order a new sale if it be shown that the proceedings were unfair, or if it be shown that the best sum bid is disproportionate to the value of the property, and if it also be shown that a sum exceeding the highest bid at least ten per cent exclusive of the expenses of a new sale, may be obtained. There is no evidence of unfairness in this case. However, the supplemental report and petition for resale states facts which are sufficient, if true, to show that the Exon bid was disproportionate to the value of the property and that a sum exceeding the Exon bid by at least ten per cent could be obtained. Upon the presentation of that report by the administratrix it became the duty of the court to hear and determine the facts so reported, and to order a new sale if those facts were found to be true. In re Bradley’s Estate, 168 Cal. 655, 144 P. 136; Rohlff v. Snyder’s Estate, 73 Neb. 524, 103 NW 49; In re McClure’s Estate, 76 Mont. 476, 248 P. 362.

Respondent, however, contends that because the Pavlis...