Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1861-06-07
PsrchmAn vs.. Charleton.

This WAS an action of ejectment for the recovery
of a tract of land lying in Davidson county Judg-
ment was for the defendant, and the plaintiff pros
ecuted an appeal in error to this Court Both par
ties derive title under one Samuel Holton, to whom
the land formerly belonged.
II annears. that on the 18th September, 1847,
said Holton, mortgsged said tract of land to one
James Herrod, to receive the payment OF debt OF
several hundred dollars due from the former TO the
latter with q power of sale, authorizing Herrod IN
the event the debt were not paid by the Zotn OF
December, 1S48 to sell the land, after 4O days
notice, and out of the proceeds to discharge the
debt.
Holtou, the mortgagor, died en- the 9th Of Febu-
ary. 1853, leaving the debt unpaid, aud the mortg
age in full force.
instantly upon the death of Holton, who died in
testae administration his estate was granted by
the County Court Of Davidson, to john W; walker
who on the 11th of February, 1868, SIX days after
the death of his intesae, fled his eI PGTe petition
In the County Court setting forth, that the intest-
ate was free man Of color, that be had no heirs
or next OF kin, surviving him, entitled to success
to his estate that the estate was indebted to lnsol
vency its value not being mere than $1,000. while
the Indebtedness, amounted TO some 81 ,2OO, and
pravipe that said land and q negro woman, owned
by the ntes ate, should be sold to discharge said
debt.
The petition ignores the existence Of the norig-
age before mentioned altogether, and treats the
land as the unencumbered estate of the intestste,
although the mortgage was OF record having oeeh
duly proved and registered
On he 9Th of March, 1858, sale of the land
was ordered by the Court, for the payment OF the
alleged debt Of the estate, without proof Of the ex
istence of any indebtedness against the estate,
other than simply schedule of the pretended debts
presented by the Administrator.
On the I'd Of April following. the land wss sold
to Charlton the defendant in the present sctOn CT
eiectment and on the 11th day Of April the report
Of sale was confirmed, and decree made divesting
the title 'out of HoOns estate" and vesting 1t In
the purchaser.
Thus. in the brief space Of little more than two
months from the death Of the intestate, this pro-
ceedipp Wes commenced and consummated. ana
nnder the suppoaed title thus acquired, Charlton,
the defendant, took procession Of, and claims the
land in controversy.
Afterwards, namely, on the 10th Of November,
1852 Herrod, the mortgage, proceeded 70 sell ssld
land under the power of sale contnuedn In the Dortg
age deed, and the same was regularly soid 70 the
plaintif. Psrchmsn, at the price Of $5Oo And on
the I'd Of November, 1855, deed OF conveyance
therefor was executed TO him. which was proved and
registered in proper form; and upon said convey
spce, the present action is founded
On the trial in tho Circuit Court, snd in the
argument here the sale ef the land, By the order
Of the County Court, was assumed 70 De PIOcee9-
;nu under the act Of 1872, eh. 28S, for the sd-
m;nistration Of an insolvent estate and ir this
view. the Court instructed the Jury, that the safe
by mortgage, under the power in the deed, was
void and communicated no title TO the purchaser.
This Instruction is based upon misconceptlon
of the facts, Is well Of the law, of the case.
The proceeding was not nor does itever profess
10 have been, proceeding under the statute for the
administration of the estate of the County Court
In no one essential respect does conform to the
requirement of that act. So far as the record
| shows there never was any suggestion made Of the
insolvency of the estate required by the 4th sec
tion nor was any order made upon the adn,nistra-
ton to give notice by advertisement in some news
paper Tor creditors TO file their Claims as required
by the 9Th section Neither does the petition, as is
obvious from its frame contemplate ratable diyl'
sion of the assets among the creditors, as Is proVld
| ed by the I'd section Of the act.
If the proceeding can be referred to any statute
IL s to the act of 1927 ch. 54, sec. BY this act
after an adminstr Ssr has expanded the personal es
tate in the pay men eEdebts unpaid
he, or any bona dd creditor of the intessate may ap