5 Day 211 | Conn. | 1811
Upon the facts stated in the motion, two questions of law, are presented for the consideration of this Court, vis. 1. Whether, by law, it was necessary, in this case, in order to render the sale valid, that a return of the sale, by the administratrix, should be made to the court of nrobate ? and
. 2, Whether the rights of all the plaintiffs to the demanded premises, are saved and protected, by the disability of Juliana Smith, one of the plaintiffs; although the defendant had held tnd occupied the same, for more than fifteen years '?
On the first point, I am of opinion, that such return was not necessary. By the statute, til. 00. c. 1. s. 22., it is en-sefed, “ that when the debts and charges allowed by the
The Ian is silent as to the form of the deed or conveyance, ¡o he given by the administrator ; but an authority to set! lands, as in this case, implies thdpower of making a title, pursuant to the know n forms of law, in this State, for the conveyance of lauds, vis. that the instrument shall be signed, sealed, witnessed, acknowledged and recorded. All this has been done : and no sale, or grant of lands, can be accounted valid, without these formalities. What would be the situation of the purchaser, if if were otherwise ? He can only examine by what authority the administrator acts, and learn fiom that, whether he confines himself within the limits of the authority given, fie can do no more. He can have no control over the subsequent acts of the administrator. If the admmistralor neglects to perform his duty, and to make the requisite return, the purchaser would be without remedy, except upon the covenants in his deed ; this remedy inay lie, and often is, of little value ; and he cannot avail himself of the surety on the administration hood.
It is objected, that if the title passes to the purchaser, oa the execution and delivery of the deed, and a return of the tale is not necessary, to render the sale good and effectual in law, whatever fraud may be practised in the sale, and even, if the administrator should sell for a twentieth part of the value, the heir can have no redress, it may be answered, that the difficulty would be the same, if the administrator should sell fairly, and for the full value, and should neglect or refuse to account for the avails.
But, in my opinion, no danger is to be apprehended, in either case, as the law has provided an adequate remedy. If any fraud has been practised, or any mistake intervened in the proceeding, or the order of sale is not warranted by law, the heir, or party in interest, may appeal within a limited *tm@, and have the fraud or mistake currartsA If this ts
In the case out of which the motion arises, the plaintiffs were parties in interest ; they might, and may yet, if not; barred by the statute of limitations, contest the order ef sale., and procure a reversal, if erroneous. Until this is done, the authority to sell stands good. The court of probate had jurisdiction, has exercised its powers, ant! the judgment or sentence, until reversed, is forever conclusive upon those who were parties to, or so far interested in the sentence or order of the court, as to be entitled, by law, to an appeal.
We are, then, to assume it as a fact, in this case, that the judge of probate was warranted, by law, to order the sale ; and Shat the administrator had lawful ami good authority to make it, in the manner prescribed He has made it; and it is declared by the statute, unconditionally, that it should bn good and effectual in law.
But suppose the administrator had not strictly pursued his authority, these plaintiffs have had, or may yet have, redress : They may appeal from the order of sale i They may apply to the court of probate, whose duty it is, to cal! she administrator to account for his doings, and if he refuses to,account, they have a remedy on his administration bond : If he renders his account, it may be contested, and an appeal taken. And whenever an appeal is taken, though taken, from every sentence, order, or decree of a. judge ef probate,, the court to which the appeal is taken, will go no furlher back, in their order for a re to; ¡ . iban to the firs! error; every previous correct sentence w iil be affirmed.
If the preceding remarks are just, it is evident, that so far from a failure of justice, in consequence of a decision in fa-vour of the validity of the sale, in the present case, such a decision will be in furtherance of justice, by facilitating settlements, and securing the quiet enjoyment of estates purchased under sales by order of courts of probate. I may add, tnat with us, the settlement of intestate estates is regulated entirely by statute. Probate courts are constituted with ample powers, and exclusive jurisdiction. No other court can settle an estate, or make a distribution. Their decisions are final aud conclusive, in every case within their jurisdiction, between the parties in interest,. Their errors can only lie corrected, by an appeal to the Superior Court, within the :;;nc limited by law. If an error is committed, that only is corroded ; and the court then proceed to the final settlement of the estate. While the settlement of an estate is thus progressing, where an order of sale has been given, and that order executed, the purchaser having paid the purchase money, received his deed, and taken possession, and no appeal shaving been taken, to permit a party interested in these pro-í eeedings, and who may appeal, if injustice is done, to eject the purchaser, would be manifestly absurd. I am of opinion, «therefore, that the charge given to the jury, bythe court, on. this point, was correct ,* and that a new trial ought not to be granted.
ss:: If I am right, on this point, a discussion of the other ques-liiori ⅛ this case, becomes unnecessary. But as the question is
This statute makes no distinction in relation to the title, or the tenure hy which lands are held- Every person not within the- proviso, whatever his right or title may be, who shall not make entry witiiiu fifteen years, next after his right or title accrues, is utterly excluded. The proviso in this statute, saves the right of Juliana, The reason of the proviso, is perfectly obvious. It. would be manifestly unjust, to deprive any person or persons of their rights, while they are under a natural or legal disability to exercise them ; and it is equally obvious, that every other person ought to be placed on an tapial fooling, in relation to theh rights.
Our statutes for regulating descents, and (he settlement and distribution of estates, seem to have contemplated, tha. all the heirs to an intestate estate, be considered ns tenants iu common, until a distribution takes place, and then tie quantity of interest of each to be held in severalty, in equal or unequal shares, according to the circumstances, resulting from any advancements to children, by way of portion nr sclllcincnt, in the life time of the deceased. The onU mention of coparceners, is in the case where the children are all daughters. In that case, it is said, they shall inherit as coparceners. This clause in the statute, math, part of the 12th section of the act, enliHed, “ an act for the
From this view of the subject, I am of opinion, that the court mistook the law, upon this point, in their charge to ihe jury.
From the first of my practice, at the bar, it had been considered as settled law, that the disability of one coheir saved the rights of all, and that they are to be viewed as coparceners.
On this point I hesitated as to a concurrence with the majority of the court, though 1 fully agreed with them as to the validity of the sale, which alone was sufficient to decide the cause.
But on a more full consideration of the point, and attention to the expressions of our statute, I am of opinion, that the English rule is grounded on these reasons only : that co-parceners are but one heir, that the parol shall demur, during the minority of either, and that they cannot sue severally. The first reason is merely the result of feudal principles ; and the other we have not adopted ; for we have allowed coheirs to maintain separate actions to recover their several shares in land. Though the original tenure of our lands was in gavelkind, in which the heirs take as copar-ceners ; the manner of descent was early settled, and has been wholly regulated by our statutes.
On adverting to our statute of distributions, I am of opinion, that coheirs under it, cannot, in any sense, be considered as holding their portions of real estate, any more than of personal, in coparcenary, whenever one of them is a male heir ; and although the statute enacts, that where there is no son, the daughters shall inherit as coparceners, 1 think it would be a forced and unnatural construction, to hold that single expression sufficient to change the nature of their estate, and the mode of its tenure. It is holden, that on the decease of an intestate, his real estate vests at law, in his heirs, though the title of each individual is liable to he de-vested by insolvency, sale to pay debts, or distribution to others ; and l can perceive no reason, why it is not equally liable to be devested, by an adverse possession for more than fifteen years, against an adult.
For these reasons, I now concur in the opinion of the Court, on both points.
New trial not to be granted