The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1859-08-10

Oscar A. Adrdge ". Thomas G. McMackiu.
This was IN action of eiectment brought by the
plaintiff IN 70 recover possession Of certain lots
Of Land from the defendant
The plaintiff claims title heir at law Of A. 5 A.
bridge who died seized and possessed Of the prem
i-es IN the year ls5S and the defendant claimed title
virtue Of decree OF the Court Of Prohte Of Law
renee County. in which the land lies, ordering the
lots to be sold and sale made under that decree.
The material facts shown ly the bili of exceptions
in relation 10 the proceedings, and decree " the
Court OF Prosae@ and the sale made thereupon, are
follows:
At the term held on the first day Of March, ISIS
Joseph Neylans and Dellah Aldridge were appointed
administrators Of the deceased. and al the term
held on the fourth Monday of the same month, 1t aJ-
pears by the records Of the Court that on the appca
non Of the administrators To- sell the real estate OF the
deceased they were directed TO give notice to all
parties Interested IN the estate TO appear the
term. TO show cause why the real estate should not
be sold ana requiring NOTICE % ue paLlshed ami
posted according 20 the requirements Of the statutes
1t also appears 10y said records that at the term Of
that Court held on the 9Th Monday Of May ISIS, the
administrators ordered To sell the said real
and that Neylans subsequently, reported that ne
had sold the the 10th july ls3s. for $40l 90
and that he accounted to the Court for the proceeds
applied to the payment Of debts against the estate.
That on the Eth July, ISIS Neylans, admnistra-
tor conveyed the premises by deed TO Joseph g. An
ierson. in consideration Of the Of S400l stated
therein TO be paid. and that the premises regu
larry conveyed from Anderson TO the defendant.
In order TO show the validity Of the administrators
sale, Neylans was introduced 10y the defendant and
testified that he the administrator who made the
ae-that the Application for the sale OF the lots was
Tor the payment Of the debts Of the estatethat he
presented at the time 10 the Court written memo
Endum showing that the personal estate WAS lnsuff-
cient to pay the debts Of the estate-he GER
tain whether It sworn to- but to the best Of his
recollection he dld not swear TO H. and was not the
custom. He further stated that he gave notice to
those interested in the real estate 10 appear 10
test the application for the sale of IL according to the
requirements of the aw-that there was proof II
the notice of publication, were the posted noti-
COS nreseryed or filed and he docs NOT know how
the Probate Court was SATISFIED that he had complied
with the law requiring notice. but that his showing at
that time was satisfactory 10 the Court and the Court
acted upon his statement that the notices had been
lyen-that the written statement which he exhibited
90 the Court, showing the insufhcency Of the per-
-ona estate, left with the Court at the time Of
presenting 1t, and he does not know what has become
oft 1t admitted that there was not to be found
the files ofthe Court any such paper. II was fur
Their shown that in the years 1885 1899 and 1910, the
papers in the Office loosely kept, and that the
only papers to be found there connected with this
| estate, die inventory and account Of sale,
| and annual account. Ii was further shown that
the administrator sold the lots IN the year ISIS for
Slool. which full and fair price for the same.
Upon this evidence the plaintiff asked the Court to
instruct the Jury. that if they believe from the eyi-
dence that Neyans, the administrator, did not pre-
T. the Probate Court, with his application for the
sale Of the real estate ~ erhtbt on oath ana an ac-
of the personal estate Of the interstate, and u
! the debts against him, then the order Of sale was
void ana they should hnd Tor the plaintiff; which the
| Court refused. and the plaintiff excepted.
Several errors are assigned by the plaintiff in error,
but the only insisted upon is the refusal Of the
| Court 10 give the instruction above stated. The
ground upon which it j. cuntended that that insruc-
ton was correct l., that ii necessary give the
Probate Court jurisdiction TO order the sale of the
real estate upon the representation Of insolvency Of
the personal estate; that the administrator should
then eNhihlt, oath Just and true account Of the
personal estate and debts and without such exhibit
on oath that the order Of sale is void But do not
| consider this position Well founded
The representation Of the insutiiciency Of the per-
~pnh estate to pay the debts Of the deceased H. tut
| an incipient step towards bringing the real estate
within the jurisdiction Of the Court Of ProhateS for
the payment of the debts. Il Is the mere foundation
of the process TO be issued by the Court to all per-
sons Interested requiring them To appear certain
DAY and show cause why the lands should not be sold
| for the payment of the debts. The spirit and true
made by the administrator would be sufficient ground
Tor issuing process requiring the parties interested
show cause, not that the Court shall not order the
| process upon other sufficient evidence showing q
the satisfaction Of the Court that the personal estate
J. insufficient. IL comes within the principle stated
IN Carson v. Carson, 81 Miss. 5g2 This showing j.
merely preliminary. and only required to be made u
the satisfaction Of the Court for the parties have the
opportunity Ut the time appointed for taking the
| ~ential action upon the matter to appear and show
that the personal estate l. sufficient and that n sale
The essential thing in giving the Court jurisdiction
TO order the sale. J. the notice Of the parties interest
time appointed Tor the hearing Of the matter. II i Il
be presumed that the necessity for selling the lane
was then legally established. When under such cir
cnmstances the Court DEGREES the sale for the pay
ment of the debit. and It does appear upou ha
! evidence the decree founded. II must h. pre-
>umed that the decree was justified bv the evidence
The issuance Of the process. and the service Of it
cprdnT to law upon the parties Interested gave The
Court jurisdiction ofthe parties; and the statute give
the Court Jurisdiction otbc subject matter Of decree
ing the sale OF the real estate Of the deceased for the
payment Of debts where the personal estate insult
hgIent which jurisdiction u properly exercised whel
after due notice to the parties Interested and upur
the hearing at the time at which they were appoint
ed 10 appear the Court determines that sae Of rea
estate i necessary Tor the purpose, and DEGREES tn
sale.
Let the Judgment be affirmed HANDY.