This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
A sale of realty at public auction is within the statute as long as the sale is extra-judicial.1 Thus a sale at public auction under a power of sale in a mortgage is within the statute of frauds.2 An executor's sale under a power given by a will is not within the statute.3 Hence, while the auctioneer may make the memorandum required by the statute as the agent of both parties4 he must do so at the time that the sale is made. If he makes it afterwards,5 or not at all,6 or if he makes an oral contract with a prospective bidder with reference to the sale of the realty7 the statute applies.
A judicial sale, made by order of the court and under its supervision is provided for by statute and is a matter of record. The statute of frauds is therefore held not to apply to such sales.8
However, a sale made in pursuance of an order of a court, and made by an officer of the court, may still be an extra judicial sale if it is not made under the direction and supervision of the court.9 The test for determining whether a sale of this sort is a judicial sale or an extra-judicial sale, seems to be whether the proceedings of the officer under the order of sale are to be submitted to the court for confirmation or not. Accordingly a sale by a commissioner of a court of chancery,10 or by a sheriff on execution,11 or by an executor or administrator under order of a court of probate powers,12 have all been held to be judicial sales where such sales must be reported to the court for confirmation, and hence not within the statute. On the other hand where confirmation was not required by the local procedure, a sale by an administrator under order of the probate court,13 or a sale on execution,14 have been held to be within the statute of frauds, on the theory that although a license had to be obtained from the court in the first instance, the sale was not within the control of the court as to any subsequent steps, and hence was not a judicial sale.
1 Seymour v. Loan Association, 116 Ga. 2S5; 94 Am. St. Rep. 131;
42 S. E. 518; O'Donnell v. Leeman,
43 Me. 158; 69 Am. Dec. 54; Boyd v. Greene, 162 Mass. 566; 39 N. E. 277; Lobit v. McClave, 8 Tex. Civ. App. 531; 28 S. W. 726; Ralphsny-der v. Shaw, 45 W. Va. 680; 31 S. E. 953; Crowley v. Hicks, 98 Wis. 566; 74 N. W. 348.
2 Seymour v. Loan Association, 116 Ga. 285; 94 Am. St. Rep. 131; 42 S. E. 518.
3Warehime v. Graf, 83 Md. 98; 34 Atl. 364.
4 See Sec. 692.
5 Ralphsnyder v. Shaw, 45 W. Va. 680; 31 S. E. 953; Crowley v. Hicks, 98 Wis. 566; 74 N. W. 348.
6 Lobit v. McClave, 8 Tex.
Civ. App. 531; 28 S. W. 726.
7 Boyd v. Greene, 162 Mass. 566; 39 N. E. 277.
8Halleck v. Guy, 9 Cal. 181; 70 Am. Dec. 643; Chandler v. Morey, 195 111. 596; 63 N. E. 512 (by special statute) ; Watson v. Violett, 2 Duv. (Ky.) 332; Warehime v. Graf, 83 Md. 98; 34 Atl. 364; Armstrong v. Vroman, 11 Minn. 142; Emley v. Drumm, 36 Pa. St. 123; Cash v. Tozer, 1 Watts & S. (Pa.) 519; Robertson v. Smith, 94 Va. 250; 64 Am. St. Rep. 723; 26 S. E. 579.
9 Carroll v. Powell, 48 Ala. 298; Bozzaz v. Rowe, 30 111. 198; 83 Am. Dec. 184; Ruckle v. Barbour, 48 Ind. 274; Wolfe v. Sharp. 10 Rich. L. (S. C.) 60; Dawson v. Miller, 20 Tex. 171; 70 Am. Dec. 380.