47 Mich. 254 | Mich. | 1881
The plaintiff in error, claiming title in fee to an undivided half of certain lands through a sale made by an executor, brought ejectment to recover possession thereof. The court charged the jury that under the undisputed facts, the deed under which the plaintiff claimed title was void, and that they should render a verdict in favor of the defendants. While a number of questions have been discussed in this court on the argument, yet there seems to be an insurmountable difficulty in the way of the plaintiff’s right to recover, and this will render an examination of the other questions unnecessary.
It appears from*the record that there were six heirs at law and that the estate owned the complete fee of the property in controversy. The only reason for selling less than the whole interest is that which is assigned by the
This case comes under the provisions applicable to sales by executors for the payment of the debts of the deceased. The statute authorizes the sale of the whole, or of such part of the real estate as may be judged necessary. §§ 4551, 4556. And in the order specifying the lands to be sold, the judge of probate may therein direct the order in which several tracts, lots or parcels shall be sold. § 4551. These provisions do not authorize or contemplate the sale of an undivided interest in the estate, in case it is unnecessary to sell the whole. Whatever part or parcel of the estate is to be sold, it must be the entire interest which the deceased had therein, — the interest of the estate as a whole, — that must be sold. In like manner the statute in providing for the sale of mortgaged premises by foreclosure in chancery, authorizes a sale thereof, or such part thereof as may be sufficient to discharge the amount due, (§ 5141); but under this provision, the uniform practice, without a single exception, we believe, has been to sell the entire interest of the mortgagor in the part or portion of the premises sold. The same practice has prevailed in the probate court, of selling the entire title or interest of the estate, whatever that interest might be.
These statutes do not contemplate a carving up of estates .and sales of undivided interests less than the whole title
The plaintiff, however, relies .upon § 4596 which provides that sales made by executors shall not be avoided on account of any irregularity in the proceedings, provided certain things appear. We have had occasion to consider this statute in the recent case of Toll v. Wright 37 Mich. 93, and do not find it necessary to examine it farther here. It will be conceded that the statute cannot validate such a sale as no statute has empowered the court to license; for if the court were to assume to authorize such a sale it would be acting without any authority whatever. When, therefore, we find that the statute has never empowered the sale of undivided interests where the estate owns the complete title, the controversy is at an end, for it is wholly immaterial how fair on its face may be any judgment, order, decree or license of a court when back of it lies an absolute legal impediment to making it.
It follows, therefore, that the judgment must be affirmed with costs, and the record remanded for farther proceedings under the statute.
The statutory authority to sell lands under license of courts of probate is a special power and confined to the case where the sale covers, so far as the land sold is concerned, the interest of which the decedent died seized. There is no power to sell any less- interest than remains in his estate in such property. All sales or other dispositions by heirs are subject to this power, provided it can be exercised at all. What that estate was must always be shown before any party claiming under a probate sale can show title at all, and when tins is shown, a comparison of the power will show whether it conforms to that estate.
I concur in the result.
