Martin v. Bond's Estate

64 Neb. 868 | Neb. | 1902

Holcomb, J.

From an order of the district court granting a license to sell real property for the purpose of paying the debts against the estate of the decedent the plaintiffs in error, as heirs at law and devisees of the decedent, and who objected to the granting of a license, prosecute proceedings in error in this court. It appears that the decedent died possessed of different parcels of lands in Kearney county, which he devised, subject to his debts, to different children, and as to one of such parcels of land litigation resulted as to the state of the title thereof. The administrator with the will annexed made application for a license to sell several tracts belonging to the testator for the purpose of paying debts owing by the estate. The only objection to which our attention is called to the order granting a license is that because of the litigation mentioned with respect to one of the different parcels of land. It is urged that, because of the litigation over the title, the land will not sell for an adequate sum, and therefore the license to sell should be withheld as to all the real estate included in the application. The whole of the argument of counsel for plaintiff in error to support his assignment of error to the effect that “the court erréd in granting license to sell the real estate described in the petition under the pleadings fthed,” is contained in the following quotation from his brief: “We think the court erred in granting the license on the facts shown by the pleadings, and that the title to the one-quarter section that is now in litigation in the supreme court should be settled before petitioner should be allowed to sell the land, or any of it, for the payment of debts; and there is no good reason why the sale should take place before it has been determined just what real property belongs to said estate.” The objection appears to be, in its nature, the interposition of.a plea in abatement because' of pending litigation affecting the title to some of the lands for authority to sell which a license is prayed. We do not think the plea or objection is good, whether the litigation referred to be with respect to the whole or a part only of the real estate involved in the application for a license to sell the same. There are, perhaps, .circumstances which would make it wise and expedient to postpone issuance of a license to sell real estate, involved in litigation, and such may be true in the present case, but we can not say from the record before us that error in granting the license affirmatively appears; or that, as a matter of law, the pending litigation involving the title to a part of the real estate to sell which a license is prayed renders erroneous an order of the district court directing the sale of such real estate for the payment of debts due from the estate to which it belongs.

Note.—Another Suit Pending.—It is an ancient rule of the common law that nemo debet bis vescari pro una et eadem causa—No man ought to he vexed twice for one and the same cause. Diamond State Iron Co. v. Rorig, 93 Va., 595, 603.—Reporter.

The order complained of is, for the reason stated,

Affibmed.