37 Miss. 72 | Miss. | 1859
delivered the opinion of the court.
This was an action of ejectment, brought by the plaintiff in error to recover possession of certain lots of land from the defendant.
The plaintiff claimed title as heir at law of A. S. Eldridge, who died seised and possessed of the premises in the year 1838; and the defendant claimed title in virtue of a decree of the Court of Probates of Lawrence county, in which the land lies, ordering the lots to be sold, and a sale made under that decree.
The material facts shown by the bill of exceptions, in relation to the proceedings and decree of the Court of Probates, and the sale made thereupon, are as follows:
At the term held on the first day of March, 1838, Joseph Ney-lans and Delilah Eldridge were appointed administrators of the deceased; and at the term held on the fourth Monday of the same month, it appears by the records of the court, that on the application of the administrators to sell the real estate of the deceased, they were directed to give notice to all persons interested in the estate, to appear at the next May term, to show cause why the real estate should not be sold, and requiring notice to be published and posted according to the requirements of the statute. It also appears, by said records, that at the term of that court, held on the fourth Monday of May, 1838, the administrators were ordered to sell the said real estate, and that Neylans subsequently reported that he had sold the same on the 16th July, 1838, for the sum of $4001, and that he accounted to the court for the proceeds as applied to the payment of debts against the estate; that on the 17th July, 1838, Neylans, as administrator, conveyed the premises by deed to Joseph G-. Anderson, in consideration of the sum of $4001, stated therein to be paid, and that the premises -were regularly conveyed from Anderson to the defendant.
In order to show the validity of the administrators’ sale, Neylans was introduced by the defendant, and testified that he was the administrator who made the sale; that the application for the sale of the lots was for the payment of the debts of the estate; that he presented at the time, to the court, a written memorandum, showing that the personal estate was insufficient to pay the debts of the estate; he was not certain whether it was sworn to, but to the best of his recollection he did not sivear to it, and it was not the custom.
Upon this evidence, the plaintiff asked the court to instruct the jury, that if they believe from the evidence that Neylans, the administrator, did not present to the Probate Court, with his application for the sale of the real estate, an exhibit on oath, and an account of the personal estate of the intestate, and of the debts against him, then the order of sale Avas void, and they should find for the plaintiff, Avhich the court refused, and the plaintiff excepted.
Several errors are assigned by the plaintiff in error, but the only one insisted upon is, the refusal of the court to give the instruction above stated. The ground upon Avhich it is contended that that instruction Avas correct is, that it was necessary, to give the Probate Court jurisdiction to order the sale of the real estate upon the representation of insolvency of the personal estate, that the administrator should then exhibit, on oath, a just and true account of the personal estate and debts; and without such exhibit, on oath, that the order of sale is void. But we do not consider this position well founded.
The representation of the insufficiency of the personal estate to pay the debts of the deceased, is but an incipient step towards
The essential thing, in giving the court jurisdiction to order the sale, is the notice to the parties interested ; and if no good cause appear to be shown at the time appointed for the hearing of the matter, it is to be presumed that the necessity for selling the land was then legally established. When, under such circumstances, the court decrees the sale for the payment of the debts, and it does not appear upon what evidence the decree was founded, it must be presumed that the decree was justified by the evidence. The issuance of the process, and'service of it, according to law, upon the parties interested, gave the -court jurisdiction of the parties ; and the statute gives the court jurisdiction of the subject-matter of decreeing the sale of the real estate of the deceased for the payment of debts, where the personal estate is insufficient, which jurisdiction is properly exercised when, after due notice to the parties interested, and upon the hearing at the time at which they were appointed to appear, the court determines that a sale of the real estate is necessary for the purpose, and decrees the sale.
Let the judgment be affirmed.