Blumenthal v. Cain

Luke, J.

Blumenthal sued Cain, not as executor but as an individual, for $4,125 damages, alleging: that Cain, as executor of the Downs estate, and in behalf of the other executors, contracted with him in writing to sell to him certain land of the estate for $10,000 when the executors should perfect title to the property; that, under the will the defendant did not have authority to sell said property at private sale, but'the plaintiff did not know, this at the time the contract was made; that the plaintiff was at all times ready, able, and willing to pay to Cain the purchase-price stipulated, but Cain, instead of complying with the contract, in behalf of himself and the executors, offered the property for sale at public outcry, and it was then and there bid off by another person for $14,125, the market price of the property, and Cain thereby became indebted to the plaintiff in the sum sued for. The defendant demurred on the ground that no cause of action was set forth; The trial court sustained the demurrer on the ground “that the *597 ■contract is contrary to public policy and void, because sales by, executors, unless otherwise provided by the will, must be by public .outcry.”

Section 4035 of the Civil Code of 1910 declares .that “A private sale of land, under an obligation to perfect by legal formality, is contrary to public policy, and renders such sales always open to review at the option of parties at interest.”. “While such contracts are executory, being contrary to public policy, they can not be enforced either at law or in equity.” Campbell Coal Co. v. Baker, 142 Ga. 434 ( 83 S. E. 105 ). See also Logan v. Gigley, 9 Ga. 114 ; Bond v. Watson, 22 Ga. 637 ; Downing v. Peabody, 56 Ga. 40 ; Park’s Annot. Code, § 4253. It follows, therefore, that the court did not err in sustainiiig the demurrer and - dismissing the; petition.

judgment affirmed.

Wade, C. J., concurs. Jenkins, J., not presiding.