The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-09-06

Ter "a insist On such adveYsemert before the court
Would order sale. Nor does appear that the
ion was oi-casssd before him whette II might a" DO
proper "a omit the the parties chose 70
do 70 pos'ing mat there In fact no snch mems.
hi last question discussed with ability before tue
Surreme Court in the following February IN Gardner vs.
Luke ~ Wepd 269 and tnat court acid that the or
such items and without the advertisement for them.
That care shows that the Revised Statutes o. hrst
cted pro,isd thai fore the order for sse should
be ma e, this order CT reference should 10 made,
bot hat the act Of 1880 ch $40, amended
This section Of the Revised Statutes so tina.
tie order shoald be maze tue motion of
either part, and tho held that th,s qualified
the that when neither party moved tor ths re-.
ference il was unnecessary ana tho order OF sale could
he n sf out 1t. This com orta, too with the In
tenon OF the law Tue reference and the vertisemeot
were oDls intended as means Of cutting of Certain
Of the advertisement AMI the parties to tue SUIT
kIew there VeIe one such, there WAS reason why
el ana advertisement which must cod in nothing II
lie anver'seu ert was omitted, and thsre snah
hens in facts the purchaser on examining tho title
wouc discover them sud decline 10 take the title uat
thu lien hodevs we're dtsch aged, and cout be
injured would be dangerous and extraordinary de-
cision TO hold that the decree Of nal'ity
when there was No advertisement II 1t sh uld appear
that no one could possibly pe Injured By the omission
and that in fact, there were 10 such ere ors oy ag
msnt decree The rule adopted by the Supreme
Ii the sound and conservative one add probably would
have been adopted by the Chancellor the question lad
sesn presented as ono o. ute as n.vssui
heirs 1T Law at the end OF ten years the parties 10
suit who choose 70 omit this Ordinary advertisement
soah produce, Of their own cost regular Sacnes Tor
all ginents and for ut least twenty yenrs.
That must be dor., In this case,
The third objection u.s. t9st tho admiristrator of tho
cecsased anyf his creditors uay obtuin decree Of
TIT Surrogate for he sale OF tho real any mo
wiDin bro ,eazs after leters IT iminstrSs.'n were
graft" .2 100, sec ~ in order 10 pay tina debts
Il tie deceased.
he lanii', attorney Insists tina. tho rae ty order
OF this C. Id supersede the % Of tie Surro-
gait order n..c ami that the pu paying his
aoney woalc ,. boni.fd Inrcbases, ana would be
protected ard b. as IN ancestor could sell without his
general credtors having . lien his lands the heir
rel in the anne way That death las he presses
i gives aod, nnl equity 70 the creditors i not
equity tha. those creditors would set np, but log Il
right gisen n from by statue to enforce sac for
the ,aymsnt of tho debts due to them they resting,
therefore, not mere equity, bat legal
right lhos, who could not avoid that legal right
would grin nothing by setting up mere equity
against ,5em The! claim, 'co By title paramount to
that of the heir; the heir claims under the
without an valuable consoles alton; the creditors claim
no. under The ancestor but through the power which
The law h,Ger power than the ancessor-sives them
over the lagos Of he ancestor even when they pass to
the sI p heir therefore takes the lants subject to
tie sxscoan Z this higher power. That lanes 500 By
the heirs may afterwards be sold by order of the surro
gate appears from tae section dire ling such lands wnen
SOLO by me Surrogate not 10 be sold until The ahds re
naming ID hs hands Of the heirr have been fret Sold
ar 5, lea sec 2ul ce Chancellor meCown, in Mat
thews Mathews q towards, btb), refuse to ALLOW
dses Of "s II Psrian suit within persod sss
granted, said e. Sly that the Legislature "iatend
ed whenever such power shouh be exercised and sale
to u he il reach and super.ede any sale made,
Iromstd bs tbe deyisee within the three years
also considered such sales not made in good fath
while debts of the ancestor remained, aud posi-
bii,ty existed of deficiency Of personal assets -
1t Is enoueh TO say that purchaser should not
be compelled to take title IN opposition to this decision
The plain IFS attoney TO show that there such
debts Of the deceased produces the affidavit Of the ad
pinisiraior The purchaser is not to depend any
ores affidavit lie is entitled TO have the fact made out
beyon all reasonable doubt that there debts
liabilities Of any lind Of the dec for which there is
any ss that the property may he soiw tetaer those
cets are his OWE, surety, or conticsent 1t may
re that Mr.. wise was Inethodicila n as to keep
account OF all his lisbires OF every Kind, taxt
ested person had the agency of mis- affairs
and such thorough kno ledge Of them that there could
be doubt what nc owed might be liable for Then
tint purchaser would incur risk II all tho debts and
liabilities rst discharged isk greater than this
the purchaser Is no bound incur ro!s there
fore should be aiken 10 judge Mason who Conducted the
aale tain whether consistently with those views
perfect title free from doubt be given {, the pur
chaser cannot be- the purchaser is t discharged
paid his ten per interest At oil events he
is TO have his costs this notion $40 The question
q costs or the reference is reserved Etaec party
bring up tho matter before the court again after ths
bearing toiort The referee.