Trent's Administrator v. Trent

24 Mo. 307 | Mo. | 1857

Scott, Judge,

delivered the opinion of the court.

This was an application by an administrator to sell real estate for the payment of debts. We see no good reason for dismissing the application. It was in conformity to law, and accompanied by the necessary documents. The inventory was sworn to, and contained the information required for the action of the court. Although there was an allegation in the petition that the judgments and executions described therein were liens upon the land, and there was a prayer that the land might be sold for their satisfaction, yet if the court was of the opinion that the allegation was unsupported, the general object of the petition was not thereby affected. It still remained an application for the sale of real estate for the payment of debts, and the question of a lien could only be material in considering the order in which the debts were to be paid. There being no other deb.ts than those named in the petition, the proceeds of the sale must have been applied to their satisfaction, and the question of a lien could only have incidentally arisen among those entitled to them.

It was objected to the petition that it did not show that the intestate, at the time of his death, was owner of the land mentioned in the petition. There is nothing in the statute which requires that any such averment should be made. The deed upon a sale by an administrator of real estate for the payment of debts only conveys to the purchaser all the right, title and interest which the intestate had in the same.

This court has discountenanced the practice of selling real estate when the title is in such a condition as must produce a sacrifice, and when it can be made clear before the sale. Under such circumstances, the proceedings should be delayed until' the title can be relieved from embarrassment. The condition of the title of the real estate involved in the present, affords no occasion for the exercise of this discy^ug (Valle v. Bryan, 19 Mo. 423.)

The question relative to the continuance of execution on the land after the death of the debtár in the execu-h .1. <* -HTMMVAf tion was not argued, and we shall express no opimdi ing it. The facts on which that question arises, as : in relation to the lien of the judgments, should be stated;w!E such precision as will enable the court to give its judgment respecting them.

. The other judges concurring, the judgment will be reversed, and the cause remanded.