25 Miss. 78 | Miss. | 1852
delivered the opinion of the court.
The defendant in error recovered a judgment in the circuit court of Tippah county, upon a writing obligatory, executed by the plaintiffs in error, to secure part of the purchase-money for a tract of land sold by the defendant in error, as administrator of Thomas Meeks, at public sale, under an order of the probate court of said county.
A motion was made for a new trial, which was overruled by the court, when a bill of exceptions was taken, embodying the evidence, which, on the part of the defence, consists mainly of the records of said probate court. From which it appears, that the administrator, on the 8th day of September, 1847, filed his petition in said probate court, praying for a sale of the said land, for the purpose of paying the debts of the intestate, and for division, &c., whereupon a citation was ordered to be pub
It thus appears, that the administrator petitioned the court for a sale of the land, for the purpose of paying debts, and for division, and that the court ordered the sale for a different purpose.
The citation which was issued, specified the purpose for which the sale was prayed. It was, therefore, only notice for this purpose. The heirs were not notified to attend court to resist the sale, except for the payment of debts, or for division. They may have attended, and successfully defended themselves against this application, for any thing that appears in the record, as it is certain that the court did not grant the application to sell the land, either to pay debts or foipaivision. As to this last object, to sell for division, it may be regarded as surplusage, it being a matter not properly under th,e jurisdiction of the administrator, and the statute having prescribed a mode of proceeding different from an application to sell land to pay debts. Hutch. Code, 667, § 102.
The probate cpurt, on a petition to sell land to pay the debts of the intestate, must confine its action^ to the case before it. It cannot, at the hearing, abandon the case presented by the petition, and order the sale for another object, as such sale would be without notice; and, therefore, not binding on those interested in the lands.
As to the case made by the special replication; we will only remark, that they do not set forth any matter which will estop the purchaser from making the defence in his pleas. The case does not fall within the rule laid down in Duncan v. Lane, cited by counsel.
Judgment reversed, and cause remanded.
