The daily Mississippi clarion. [volume] (Jackson, Miss.) 1866-1866, 1866-05-09

as moi. 10 include any of the land now in dis
pute and so as to apply TO very sLnaA POT
ton of the land owned by Learned IN 20
piah county, and its dismissal was therefore
no adjudication at all in regard to the pro
| prietv of a sale of this land. aud forms no
obstacle TO a subsequent application TO TIE
| COprt in regard to II. The original petition
itself was not wholly dismissed, but IT was
retained as the report by the administrator
I of the iusutficiency of the personal estate 10
| pav the debts and as the foundation OF the
order for the sale OF the lot in Jackson. In
| decreeiup the sale OF that lot, upon the pc
titiOn then filed, the court necessarily adj
4 Judged that the report was true, and that
the personal estate was in fact insufficient
to nav the debts. The application was dis
missed only so far as regarded the prayer Tor
the sale Of the particular property IN Co
/ piah county. named in the citation, and TIE
manned IN court for all other purposes.
The subsequent proceedings instituted at
June term. 1913 and consummated by the
final decree at August term, following, do
not expressly refer TO or connect themselves
with the former proceedings IN lo4I. 1hey
contain no alfusiOn TO the original petition,
and do not profess to be based upon 1t, but
on the contrary purport TO be distinct and
Independent of it.
Tits necessary to anticipate the question
whether, after the dismissal of the first ap-
/ plic3ton as to the land embraced III 1t, the
same land would have been subjected 10
| decree of sale on the subsequent application.
! The objections made by the administrator of
| Reynolds, may have been conclusive, OF
| otherwise. in their character, What they
! were does not appear. They may have been
I rather in abatement than in bar, and II the
/ latter, it might be doubtful whether any
| persons but but the representatives OF Key
| uolds could plead the dismissal final
| We express no opinion on these points, nor
| on the question whether the dismissal of one
/ application for the sale of real estate for the
/ payment of debts, viii under all ClrcuIn-
! stances bar a second app .ication for the same
/ purposes. The view we have taken dlsposes
/ of the objection raised in the argument ON
| the ground of res jWdioatd, and shows that
| the doctrine of the cOnclusIveness of the
| DEGREES of the Probate Court, and of the
| want of power 70 set them aside after the
| term is not involved in this case But the
! question remains whether the order of sale
| was based upon proceedings sufficient to give
| the court jurisdiction to pronounce it.
! All that appears is the order made at June
! term, lS43, directing the issuance of citation,
i and the decree made at August term, 1S43,
| ordering the sale These are remarkably
! full. complete and technical. There was
! however, no written petition or application
/ filed, nor was there any report, under oath,
/ of the debts as assets, showing the neceSSl- |
/ ty for such sale. Both these points appear
/ to be fully covered by the decision in Ell |
! bridge vs.. McMackin, 81 Miss -. No pc |
| tition in writing was required by the statute |
/ under which this order was made, Clutch. |
| code, 666 sec. o, and though an account Of |
| the personal estate and debts Is required TO |
| be made and exhibited on OATH ii is decided |
| i'm the case just quoted, that its commission |
does not affect the jurisdiction of the court |
SO as to make void decree of sale pTonounc- |
ed without such account having been eNhib- |
tied. But in the present case, the former re
port of this administrator, presented at /
April term, l-4l, representing the insult |
hcieucy ofthe personal estate, and the judg- |
uent of the court then given in affirmance |
of its TRUTH were of record, and rendered |
any further representation by the admins
traitor on that subject altogether super
tiuOUs and unnecessary. Indeed il now APP |
pears, though the Probate Court was prOba-
bly, not aware Of it at the time, that as far
back as 1889 the estate had been regularly
reported and declared to be insOlvent du-
ring The Enthusiastically of Mrs. Learned.
3. But If the Court had jurisdiction to |
make the order of sale, it is insisted that the
proceedings under it are imperative to d.
vest the title Of the plaintiffs because the
sale was not reported to, and confirmed by
the Court.
The sale was made on the thirteenth day
of May, l04i, and no report was made I'M
til the seventeenth day of November 1S47.
At the latter date formal report, not, how
ever under oath, was made out, and filed
with the Clerk of the Probate Court of Co
piJh county, the Court not being in session
and no action appears ever to have been
taken upon il.
The statute under which the sale was
made, dutch. Code Coz } provides that the
executor or administrator making such sale, !
shall make report, in writing. of all the pro ,
eeedingS thereon, to the next Orphans Court
after such sale" but there is no express re ,
quITement that the court shall confirm the | I
report. The question as to the necessity of ,
such confirmation has, however, frequently {
been before this COnrt, and we regard it as I
settled, that sale of land, under decree Of I
the Probate Court, is not operative to pass ,
the title to the purchaser, until the sale has I
been reported and confirmed +
In the case OF Smith vs.. benson, 3, S & I
NJ. 326, the appellant filed his petition in the y
Probate Court, in 1872, to set aside a pur v
chase of land made by him at administra- t
tors salem 1888, alleging various Irregular L
ties IN the proceeding, and stating that no | 9
report of the sale had been made. This | n
Court in deciding the case, uses the follow '
ing language: If, then, the Court (Probate) q
has power 10 set aside the sale, the proper
timc to do is when the administrator Y
makes his report. Until then the proceed d
Iugs is not final; there is no Judgment rati- +
flying or approving the sale If the admin II
to make his report the court f,
may compel him to do So" This language Il
was employed in case where four years ri
had elapsed after sale and no report had /
been made, and therefore recognizes the po- =,
sitIou that the failure Of the administrator l.
to report the sale to the next Court, viii not,
Of itself, render the sale void. The Court
may compel a report at a subsequent time, =,
and the proceeding Is not final until there is %
a Judgment of the Court ratifying or approx ca
ing the uale fir
The case of Hoel VS.. Coursery, 20 Miss, d 10,
81. lnyolvedth validity of a sale made by vi
guardian, under a statute containing the lie
same provision in respect to the report
Hutch. c., sos, sec. 49,. The sale was made d
1u the 18th of April, 1875, and reported to the oe
't,lrf nm ,ffrsra
IA October ISL. The Court say, "But there M
S still more fatal objection to the sale -
No report Of it appears to have been con- Il
irmed 10y the Probate Court, until October
-ll, more than six years after the sale had
Jecu made, and nearly year after the WI
leath Of the guardian" The Court 90 on in
o argue, that if the report had been made ID
u the proper time, it might have been ou
hen confirmed without further notice. aV
But 1t could not be held to be notice for TIC
my other term, unless the record showed a iri
continuance of the application; and hence "
he order made in October lS41, without | gr
lOtlce to the ward, must be treated, to sav IN
he least as voidable if not absolutely void ne
L was actually treated as void, for the court be
eld that the Interests of the ward did not ca
'asS by the sale 50 confirmed
The case Of Bland VS. Muncaster, u Miss a
2, Is a strong authority to the effect OF vi
confirmation and to cure irregularities in va
he proceedings The law required sales to co
t dtf tlitsttl at IcaSJ IulEtN days, and the ia
ecord showed that the order of sale was lai
made on the 18th of February, and that the de
ale took place on the goth March. lust Dr.
wenty three days afterthe order Yet the In
curt said the ordor of the Probate Court
the sale, must be treated as final no
nj conclusive, until reversed, unless tie r.
anne be vacated for fraud or other matter .
'hich would render it void -
In Monk vs. Horne, 3S Miss. 100 the Court an
yldently treat the question as settled The pri
lalntlh in error attempted to object to the tn.
dmlsslbIllty of proof of an administrators art
ale, on the ground that it had not been con-
rmed The Court assume that the obiec- wi
ION was valid, but say that il cannot avail ina
be plaintiff under the state of case pre- aft
7nted by the record In the first place no inl
blectlon was made 10 the admission OF the Iii
yldence of the defendant on that ground br
lie Is not to be permitted to allege here till
mother objection against the competency of IS
be evidence for if this had been made in ,
be Court below, it might have been olivia the
ID by sufficient evidence" ~,
In the case Of Smith VS. Chaplain, (MS) | Bile
ctoher term, 1861, it is said, 1.-TWO points per
ndeT the decisions of this Court are already / du
JADE out in this record against the title Of ty
lpellant. ]. There was no order of con- spl
rmation Of the sale by the administrator at ]
Ie return term, or next term of the Court; per