23 Wis. 30 | Wis. | 1868
The following opinion, finally disposing of the cause, was filed at the June term, 1868.
At the former hearing of this case we thought the judgment of the circuit court should be affirmed, upon the ground that if the title which the plaintiff acquired at the administrator’s sale should turn out to be a perfect one, this would furnish a sufficient answer to his application for equitable relief. We are now satisfied that this view of the case cannot be entertained upon the facts found by the court below.
It is hardly necessary to remark, that when the personal estate of any deceased person in the hands of the executor or administrator is insufficient to pay all the debts, the statute has conferred upon the county court power to license the sale of the real estate upon a proper application therefor. Chap. 94, R. S. And the circuit judge is only authorized to act in hearing the application in cases where the statute disqualifies the county judge from sitting- in the matter. Sections 16 and 17, chap. 117, R. S., declare when a county judge shall be deemed incapacitated from executing the duties in relation to -the estate oi question. By the 16th section, when the judge, his wife or child, shall be an heir or legatee, or when the judge shall be an executor or administrator of a deceased person, he shall be deemed incapacitated for executing the duties of his office in relation to that estate. And the next section of the chapter provides, that when the judge, as a creditor or otherwise, shall be interested in any question to be decided by the court, he shall be deemed incapacitated for acting in the decision of that question; and the judge of the circuit court for the same county, in such case, shall perform the duties of the judge of the county court. It will be at once seen, that the statute does not make, it a ground of disqualification that the judge of the county
This brings us to a consideration of the question whether, upon the matters stated in the complaint and set forth in the finding of the court, the plaintiff is entitled to the relief sought. The equities of the plaintiff’s case certainly appear sufficiently clear and strong to entitle him to some relief. If the administrator’s sale is void, he surely should be repaid the money he has advanced upon it. And we perceive no valid reason why he should not be subrogated to the rights of Prideaux under his mortgages. The court finds that these were valid and subsisting liens when Shadwiclc died; and further that Hammett and wife applied to Jones to aid them to raise money to pay these incumbrances and other debts against the estate, representing to him that the defendant Charlotte was the- only heir of Shadwiclc, and as such had inherited his property. As the result of the various trails-
By the .Court. — The judgment of the circuit court is reversed, and the cause remanded for further proceedings according to law.